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Full text of "Legal and moral constraints on low-intensity conflict"

INTERNATIONAL LAW STUDIES 

1995 

LEGAL AND MORAL CONSTRAINTS ON 

LOW-INTENSITY CONFLICT 



Edited by 
Alberto R. Coll, James S. Ord and Stephen A. Rose 

Volume 67 



NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



Library of Congress Cataloging-in-Publication Data 

Legal and moral constraints on low-intensity conflict / edited by 
Alberto R. Coll, James S. Ord and Stephen A. Rose, 
p. cm. — (International law studies; v. 67) 
Papers presented at the Symposium on Low-Intensity Conflict held 
April 1992 at Naval War College. 
Includes index. 

1. War (International law). 2. Low-intensity conflicts (Military 
science) — Moral and ethical aspects. 3. United States — Military 
policy. I. Coll, Alberto R. II. Ord, James S., 1953- 
III. Rose, Stephen A., 1948- . IV. Symposium on Low-Intensity 
Conflict (1992: Naval War College). V. Series. 
JX4521.L44 1995 
341.6— dc20 

95-31337 
CIP 



IN MEMORIAM 

This book is dedicated by the editors to the memory of Staff Sergeant 
Jeffrey A. Morrisey, United States Army Special Forces (1960-1994), a faithful 
soldier, public servant, colleague, and friend. 



TABLE OF CONTENTS 

Page 

FOREWORD xi 

ACKNOWLEDGEMENTS xiii 

PREFACE xv 

PART ONE— INTRODUCTION 1 

CHAPTER I— UNCONVENTIONAL WARFARE, LIBERAL 
DEMOCRACIES, AND INTERNATIONAL ORDER 

Alberto R. Coll 3 

PART TWO— LEGAL CONSTRAINTS ON LOW-INTENSITY 
CONFLICT: INTERNATIONAL LAW AND STATE 
SOVEREIGNTY 23 

CHAPTER II— LOW-INTENSITY CONFLICT AND 
THE INTERNATIONAL LEGAL SYSTEM 
John N. Moore 25 

CHAPTER III— STATE SOVEREIGNTY, INTER- 
NATIONAL LAW, AND THE USE OF FORCE IN 
COUNTERING LOW-INTENSITY AGGRESSION 
IN THE MODERN WORLD 

Robert F. Turner 43 

CHAPTER IV— LOW-INTENSITY CONFLICT AND 
STATE SOVEREIGNTY: A PHILOSOPHICAL 
ANALYSIS 

Fernando R. Teson 87 

COMMENT 

Terry Nardin 109 

CHAPTER V— PANEL DISCUSSION: INTERNATIONAL 
LAW AND STATE SOVEREIGNTY 

W. Michael Reisman, Chair 115 

PART THREE— MORAL CONSTRAINTS ON LOW- 
INTENSITY CONFLICT: MORALITY AND THE JUST 
WAR TRADITION 145 



viii Contents 

CHAPTER VI— JUST WAR TRADITION AND LOW- 
INTENSITY CONFLICT 
James Turner Johnson 147 

COMMENT 

Francis X. Winters 171 

CHAPTER VII— JUST WAR DOCTRINE'S COMPLEMEN- 
TARY ROLE IN THE INTERNATIONAL LAW OF 
WAR 

William V. O'Brien 181 

COMMENT 

William G. Eckhardt 205 

CHAPTER VIII— PANEL DISCUSSION: MORALITY 
AND THE JUST WAR TRADITION 

Alberto R. Coll, Chair 209 

PART FOUR— U.S. POLITICAL AND CULTURAL 

CONSTRAINTS ON LOW-INTENSITY CONFLICT .... 249 

CHAPTER IX— LOW-INTENSITY CONFLICT IN THE 
POST-COLD WAR WORLD: THE AMERICAN 
MORAL-CULTURAL ENVIRONMENT 

George Weigel 251 

CHAPTER X— AMERICAN STRATEGIC CULTURE IN 
SMALL WARS 

Games Lord 265 

CHAPTER XI— PANEL DISCUSSION: DOMESTIC U.S. 
CONSTRAINTS ON LOW-INTENSITY CONFLICT 

Bruce A. Harlow, Chair 273 

CHAPTER XII— ROUNDTABLE DISCUSSION 

Alberto R. Coll, Chair 303 

PART FIVE— CONCLUSION 323 

CHAPTER XIII— CAN AMERICAN DEMOCRACY 
EMPLOY COVERT ACTION AS AN INSTRUMENT 
OF STATECRAFT? 

Alberto R. Coll and Richard H. Shultz, Jr. 325 



Contents ix 

EDITORS AND CONTRIBUTORS 353 

INDEX 359 






FOREWORD 

The International Law Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish essays, treatises and articles that contribute to 
the broader understanding of international law. This, the sixty-seventh volume 
of that series, is the product of a conference on low-intensity conflict hosted by 
the Naval War College in April of 1992. 

Sponsored by the Office of the Assistant Secretary of Defense for Special 
Operations and Low-Intensity Conflict, the Symposium on Low-Intensity 
Conflict brought together scholars, government officials and military officers to 
address the legal and moral constraints on the ability of the United States to 
engage in low-intensity conflict operations. Symposium participants included 
international law scholars, military officers, political scientists and philosophers 
uniquely well-suited to explore normative constraints, both legal and moral, 
upon a democratic society's ability to engage in international conflict at the low 
end of the spectrum of violence. This volume consists principally of papers 
written for and presented at that symposium, as well as panel discussions and 
intercessions from the floor. The principal papers focus on low-intensity conflict 
and the international legal system, just war doctrine, and American morality and 
legal limits of conflict. The result is a balanced analysis of the philosophical and 
legal underpinnings of low-intensity conflict. While the opinions expressed in 
this volume are those of the individual authors and participants, and not 
necessarily those of the Office of the Secretary of Defense, the United States 
Navy or the Naval War College, they provide a most valuable contribution to 
the study of low-intensity conflict. On behalf of the Secretary of the Navy, the 
Chief of Naval Operations, and the Commandant of the Marine Corps, I extend 
to the editors, Professor Alberto R. Coll, Major James S. Ord, and Captain 
Stephen A. Rose, and the contributing authors of this informative and provoca- 
tive work, our gratitude and thanks. 



James R. Stark 

Rear Admiral, U.S. Navy 

President, Naval War College 



ACKNOWLEDGEMENTS 

The Editors wish to thank those persons and institutions without whose 
support this book could not have been published. The Offices of the Under- 
secretary of Defense for Policy and the Assistant Secretary of Defense for Special 
Operations and Low-Intensity Conflict generously provided all the necessary 
funding. Colonel Ron Smith (USA) and Staff Sergeant Jeffrey Morrisey (USA) 
brought their considerable skills to bear in helping to organize and conduct the 
initial symposium in 1992 out of which this book grew. The Editors also wish 
to thank the panel Chairs at the 1992 Symposium, Prof. W. Michael Reisman 
of Yale University and Rear Admiral Bruce A. Harlow, JAGC, USN (Ret.), 
and all the authors, commentators, and participants for their substantive con- 
tributions to this effort. Finally, without the sustained support and encourage- 
ment of RADM Joseph C. Strasser, USN, President of the Naval War College 
(1990-1995); Dr. Robert S. Wood, Dean of the Center for Naval Warfare 
Studies; and Professor Richard J. Grunawalt, Director of the Department of 
Oceans Law and Policy; and their dedicated staff; this book could not have been 
published. 



PREFACE 

In a book such as this, it is essential to start out with a definition of 
"low-intensity conflict." The term is far from precise, and so are any of the 
numerous replacements offered for it. This should not be surprising. Despite the 
hankerings of many political scientists to the contrary, the reality of human 
conflict and war is difficult to categorize into neat, easily distinguishable 
phenomena. The standard definitions offered by civilian or military planners and 
their doctrine manuals suffer from being designed often more with an eye to 
bureaucratic turf preservation than intellectual coherence or clarity. Hence, the 
best one can do is follow Aristode's injunction to any would-be political scientist 
in his Ethics, and aim as well as possible, realizing all along that any definition 
will be less than fully satisfactory by leaving out some dimensions of the problem. 

In general, this book uses the term "low-intensity conflict" to describe 
conflicts other than those in which two or more States use as the preponderant 
mode of military operations their regular, uniformed armed forces directly 
against each other. Under this criterion the Vietnam War would be considered 
a "mixed" conflict in which conventional warfare alternated with "unconven- 
tional" or "low-intensity" modes of conflict. In low-intensity conflicts either 
one of the primary actors is a non-State entity, or the States involved use as the 
principal means of coercion against each other instruments of violence short of 
their regular armed forces, such as guerrilla warfare, terrorism, subversion, 
assassination and coups d'etat. Because this type of warfare is different from the 
"conventional" use of regular armed forces against each other, it makes sense to 
use the term "low-intensity conflict" interchangeably with "unconventional 
warfare", even if this usage departs from that in some of the military manuals. 

Low-intensity conflict is intensely political. At the strategic, and even tactical 
level, political considerations guide its logic with greater force and thoroughness 
than is the case with many conventional conflicts. This also differentiates 
low-intensity conflict from a resort to violence that is non-political in nature, 
such as some types of criminal activity or social turmoil that lack an underlying 
political objective as the chief guiding compass. Beyond these general criteria it 
is difficult to go much further without either narrowing the definition excessively 
or else making it so broad as to deprive it of usefulness. 

When the low-intensity conflict symposium out of which this book grew 
was held in April of 1992, Republican control of U.S. foreign policy was in its 
twelfth year. One result of this long period of dominance by a single party was 
that the central assumptions of the foreign policy debate and much of its 
terminology had come to reflect conservative responses to the challenges of the 
Cold War. The recent history of the expression "low-intensity conflict" provides 
an interesting demonstration of this trend. Throughout the seventies and into 



xvi 

the mid-eighties it was often employed as a critical label by those who wished 
to discourage any but the most obviously defensive use of American power 
abroad. Even as late as 1988, it was used in this way in a widely read volume of 
essays edited by Michael Klare and Peter Kornbluh that treated the intentions 
and capabilities of the United States in low-intensity conflict with grim reserve. 

The renewed determination evinced by the Reagan Doctrine to counter the 
sub-conventional challenges of the Soviet Union gave low-intensity conflict a 
continuing, if controversial, currency. But it was probably the fact that our 
low-intensity conflict strategies began to succeed, which became increasingly 
evident throughout the eighties in places as unlike as Afghanistan and El Salvador, 
that made possible public discourse in which low-intensity conflict could be 
treated as a legitimate interest of the United States government. The estab- 
lishment by the 1986 Goldwater-Nichols Act of the Office of Assistant Secretary 
of Defense for Special Operations and Low-Intensity Conflict gave the term an 
official solidity and provided a valuable locus for efforts to develop a comprehen- 
sive policy to deal with all the activities it had been used to describe. 

Though the respectable use of low-intensity conflict had been long established 
by 1992, the subsidence of the Soviet threat sharpened nagging concerns about 
its moral and legal ambiguities and added a worrying new dimension of 
ontological uncertainty to the whole enterprise. If low-intensity conflict had 
principally been used to describe the various manifestations of Soviet mischief 
around the globe, to what would it now refer? If it was to be applied to the 
ancient kinds of nastiness that seem always to reassert themselves at the collapse 
of empires, then the efforts of Reagan era low-intensity conflict proponents to 
adapt traditional modes of moral and legal reasoning to meet the insidious 
challenges of a "new" kind of conflict might began to seem retrospectively fishy. 
But if the Cold War had actually wrought a temporary deformation in the 
evolution of international law and morality, those new interpretations of such 
concepts as sovereignty and legitimate self-defense might well have been justified 
and could even help to secure wider respect for human rights and democratic 
institutions in the future. It was in this tentative atmosphere, a reflective pause 
after a prolonged period of enthusiasm and success, that the low-intensity conflict 
symposium was convened. 

There is abundant literature on the subject of low-intensity conflict, most of 
it dealing, as one would expect, with the practical difficulties of coping with 
such thorny military challenges as counter- and pro-insurgency. A subset of the 
literature is concerned with the political ambiguities of the low-intensity arena 
and the difficulties it holds for policy makers and diplomats. But very little effort 
has been devoted to analysing why this kind of conflict is so problematic for a 
democracy such as the United States and even less to anatomising the exact 
nature of the normative constraints that seem to hem us in from every side when 
we confront a foreign challenge short of conventional war. 



xvii 

Although the symposium that occasioned this volume is far from the first large 
meeting convened to discuss low-intensity conflict, the deliberations of previous 
conferences have tended to revolve around the practical concerns described 
above. As an example, of the 68 papers presented at the 1990 American Defense 
Preparedness Association Special Operations/Low-Intensity Conflict Sym- 
posium, only a handful dealt with doctrine and policy, and of those few, none 
addressed the issue of moral and legal constraints on our ability to engage in 
low-intensity conflict. 

For those concerned to ground U.S. policy on principles that go beyond what 
is pragmatic, the neglect of these fundamental normative and cultural issues 
became more obvious as the Cold War order crumbled. The comforting notion 
that our uneasy instability was but the twilight prelude to a fresh dawn in world 
affairs was made increasingly implausible by the refusal of a new order to emerge. 
The suck and eddy of this great tidal flux would inevitably tug painfully at many 
of our interests abroad in unpredictable ways. The death of the Soviet Union 
simply multiplied the subconventionaJ challenges facing the United States while 
removing the grand exigency that had justified past low-intensity conflict 
strategies. 

The end of the Cold War naturally required every aspect of American security 
policy to be examined in the light of changing conditions abroad and heightened 
international expectations that we serve as an arbiter of order and justice. But 
the gravamen of the case for rethinking our approach to low-intensity conflict 
resided more particularly in the need to understand how a democracy could 
morally countenance a continued or expanded involvement in warlike activities 
lacking the appealing moral clarity of the two World Wars, uncertain of 
legislative sanction and prompted by no obvious, general threat to our security 
such as had been provided by communism. If the most potent limitation on our 
conduct of "low-intensity" or "unconventional" operations was the generalized 
discomfort of the American body politic with them, then surely it made sense 
to understand precisely the nature of the reservations, how far they were 
immutable or transient, and what latitude they might reasonably be expected to 
afford future low-intensity conflict policy makers. 

The task of elucidating the questions raised by the new focus of the 
low-intensity conflict policy directorate was clearly beyond the portfolio of any 
government department. They involved a complex mix of legal, historical and 
cultural considerations that could only be addressed by an assortment of experts 
steeped in these various aspects of the low-intensity conflict conundrum. The 
perception that the intellectual cartography of all those in the U.S. defense and 
foreign policy establishments would have to be reoriented to an as yet unclear 
landscape lent the task a feeling of historic moment and imbued it with 
philosophical, introspective undertones. The time was ripe to bring together an 
unusual combination of theoreticians and practitioners to consider in depth the 



XVIII 

constraints on America's freedom of maneuver in the low-intensity conflict 
arena. 

A few observations on the rationale behind the organization of the resulting 
symposium should be of use to the reader who approaches this volume with 
more than casual interest. To impose a productive structure on the rich and 
promising mix of diplomats, lawyers, scholars, soldiers and sailors, it was thought 
best to provide three distinct topics for their deliberations. To this end, a series 
of analytic papers was commissioned from a select group of thinkers to provide 
the meat for discussions of sovereignty, just war theory, and the domestic legal 
and political strictures on low-intensity conflict. To lend coherence to the 
diversity of view that was expected in the discussion, a complementary series of 
dissenting or critical essays was also commissioned. Those who feel the need to 
reacquaint themselves with the nature of sovereignty law and the jus ad bellum 
before plunging into the melee of debate, will find in the articles and essays well 
written, non-technical and incisive explications of these topics that seldom stray 
from the overarching concern with low-intensity conflict. If, on the other hand, 
the reader would like to put his finger on the carotid pulse of the low-intensity 
conflict debate, all he need do is dip into the symposium proceedings. 

The brief account of the changing fortunes of the term "low-intensity 
conflict** offered at the beginning of this introduction stopped short of describing 
its current status. Now that the Democratic party has regained the Presidency 
after a prolonged absence, it is natural to expect that the language used to frame 
our national aspirations in foreign policy would change, and indeed, a casual 
observer of these affairs might be forgiven for forgetting that low-intensity 
conflict was ever a widespread concern in our defense and foreign policy 
establishments. The expression seems to have reacquired some of its former taint, 
having retained, perhaps unsurprising, unfavorable associations for those last in 
office in the seventies. Though its existence has not been actively denied, its 
popularity as a way of approaching the problems of sub-conventional conflict 
was for a time eclipsed by high hopes for the possibilities of multilateral security 
operations conducted under the aegis of a newly sensible, more muscular United 
Nations. There is now a family of activities, grouped under the heading of "peace 
operations,** which are expected to cope with many of the disturbances formerly 
collected under the rubric of low-intensity conflict. That enthusiasm for this 
new approach to security challenges has recendy begun to pall is probably as 
much a reaction to the messy realities of the challenges themselves as it is an 
indication of a realistic reappraisal of the limitations of the United Nations. In 
one respect, this is reassuring evidence that low-intensity conflict policy makers 
and theorists have not been engaged in an extended exercise in reification. 
Whether one calls them small wars, "unconventional warfare**, low-intensity 
conflicts, peace enforcement operations, or "operations other than war**, the 



xix 

phenomena considered by the low-intensity conflict symposium in April of 1992 
are real and persistent. 



Alberto R. Coll James S. Ord Stephen A. Rose 

Strategy and Policy Department Major Captain, JAGC 

Naval War College U.S. Marine Corps (Ret.) U.S. Navy 



Note 

1. KLARE & KORNBLUH, LOW-INTENSITY WARFARE (1988). 



PART ONE 



INTRODUCTION 



Chapter I 

Unconventional Warfare, Liberal Democracies, 

and International Order 



Alberto R. Coll 



The high political, military, and economic risks increasingly associated 
throughout the course of the twentieth century with open, conventional 
war have led many States and non-State entities to shift to other forms of violence 
as instruments of foreign policy. While the attention of liberal democracies and 
their governments tends to be riveted on the spectacular scenarios of nuclear war 
or regular conventional conflict, numerous international actors resort to what 
might be described as strategies of "violent peace" to achieve their objectives. 
Far from making open war, these actors do their best to persuade their adversaries 
that they are at peace with them and that relations between them should be 
"normalized". For these actors, violent peace is a state of affairs in which a wide 
spectrum of unconventional and highly creative modes of violence, best summed 
up under the term "unconventional warfare", are used against an opponent, 
while maintaining the pretense that there is no open war going on. It is a 
conception of warfare with which ancient strategists and philosophers of war 
such as Sun Tzu (400 B.C.) and the author of the Arthashastra (300 B.C.) were 
familiar, but which democratic societies, shaped as they have been by notions of 
rational liberalism and the feasibility of true peace, have difficulty comprehend- 
ing. 

Unconventional warfare covers a diverse range of activities, many of them 
associated with the term "low-intensity conflict": support for guerrilla warfare, 
insurgencies, and non-State actors committed to using violence to achieve their 
political purposes; undeclared war aimed at overthrowing governments allied 
with, or friendly to, one's adversaries; aid to terrorist groups through the 
provision of money, arms, training, false documents and sanctuary; sponsorship 
of violent coups to install more pliable foreign regimes; sophisticated and 
intensive disinformation campaigns through the use of broadcasting, other 
communications media and forged documents to incite violence against the 
adversary's diplomatic personnel overseas and foreign governments friendly to 
it; support for acts of assassination and political intimidation against foreign leaders 
and high-profile defectors and dissidents; and cooperation with entities involved 
in the wholesale export of narcotic drugs. 



4 Legal & Moral Constraints on Low-Intensity Conflict 

Unconventional warfare poses serious problems for democratic, open societies 
committed to the rule of law in international relations. The covert nature and 
elusive instrumentalities of unconventional warfare make it difficult for societies 
under attack to identify the source of the threat and to rally domestic and 
international opinion to support effective defense and deterrence measures. 
Unconventional warfare places its victims in the awkward legal, moral and 
political dilemma of choosing an appropriate response. Sectors of the interna- 
tional community often misperceive responses of a conventional nature, such as 
the 1986 U.S. bombing raid on Libya, as "disproportionate" or aggressive in 
themselves. A double standard sometimes prevails, according to which societies 
under the attack of unconventional warfare are denied the means to defend 
themselves. The traditional rules of international law and the legal framework of 
the United Nations Charter, elaborated to deal with outright, open conventional 
military aggression, are difficult to apply to the highly creative modes of violence 
characteristic of "violent peace" and unconventional warfare. 

Unconventional warfare always has been an inextricable component of 
international politics, though its salience at a particular time has depended on the 
character of the State system within which it takes place. In highly anarchical 
and competitive State systems whose members are bound by few or weak legal 
and moral ties such as Renaissance Italy, unconventional warfare tends to prevail 
more than in stable State systems such as 19th century Europe where there is a 
relatively strong consensus on what constitutes legitimate international behavior. 
The foundation of unconventional warfare is a particular view of statecraft which 
sees international relations as inevitably competitive, as providing litde space for 
the long-term accommodation of divergent interests, and as requiring the pursuit 
of the most devious political instruments to achieve the greatest possible security 
for one's State. Thus, unconventional warfare, regardless of the military nature 
of many of its instruments, is essentially political in its guiding logic and its 
character. Its objective is to confuse, weaken, paralyze and undermine an 
adversary so as to increase the power and security of one's State or group. Insofar 
as unconventional warfare resorts to military force, it does so in a carefully 
calculated fashion and within the context of a broad strategy that includes 
diplomatic, economic and psychological instruments. To appreciate the true 
significance of unconventional warfare in the late twentieth century requires that 
we understand some of the deep, ancient intellectual roots of this particular mode 
of statecraft. The thought of Kautilya, Sun Tzu, and Machiavelli is especially 
relevant. 

Kautilya's Arthashastra. 

Chanakya Kautilya (345-300 B.C.?) was chief advisor and close friend to 
Chandragupta Maurya, founder of a new empire and dynasty in the heart of 



Coll 5 

India. Kautilya's reflections on the science of politics, known as the Arthashastra, 
occupy a prominent place in Indian literature and constitute one of the earliest 
and most articulate expositions of the statecraft of violent peace and unconven- 
tional warfare. The counsels with which the Arthashatra is filled are based on 
the assumptions that international politics is anarchical in nature, that rivalry and 
conflict are inevitable, and that the State's survival requires as much cleverness, 
dissimulation, deceit, and the employment of covert aggression as raw military 
and economic power. 

From Kautilya's perspective, permanent peace among States was impossible. 
In fact, one of the most striking aspects of Kautilya's thought was his view that 
a state of peace can go hand in hand with one of permanent enmity. Whereas in 
the Western liberal tradition peace and amity are generally seen as logical 
complements, Kautilya argued that peace and enmity are equally complementary 
and are as "natural" an expression of power politics as the forced complimentarity 
of peace and friendship. A State may find it prudent to arrange a truce with an 
adversary of equal strength, so as to avoid a senseless war in which victory is 
impossible, but such a truce is temporary in nature and subject to revision 
according to the fluctuations of the balance of power. Moreover, such "peace" 
need not imply a corresponding psychological condition of friendship. Under- 
neath the political truce, enmity is to be continuously cultivated in the psychol- 
ogy of one's State and its long-term statecraft, in preparation for the day when 
it may be possible to pounce on the unsuspecting adversary and destroy him. 
Similarly, a weak State may submit peacefully to the hegemony of a stronger 
one, or find itself courted by a stronger State seeking its support for containing 
a common adversary, but underlying such "peaceful" relationships is an element 
of convenience which can easily disappear given the ever shifting tides of 
international relations. 

Every State finds itself in one of three conditions: deterioration, stagnation, 
or progress. One of the statesman's chief tasks is to evaluate correctly the actual 
condition of his adversaries and respond accordingly. An opponent's stagnation 
or deterioration is to be exploited without fail, while progress in his power 
capabilities may require a diplomatic offensive designed to "normalize" relations 
and arrange a truce so that he will not use his expanding capabilities to gain 
significant political or strategic advantages. 

From his personal involvement in numerous wars, Kautilya was well aware 
of the high costs and unpredictability of regular "open" warfare. Hence, much 
of his treatise offers detailed advice on how to carry out what we would call 
"covert" or unconventional warfare. Of particular importance were intelligence- 
gathering, acts of destabilization, intensive resort to propaganda and psychological 
warfare, political deceit and pretense, outright treachery and assassination. 
Unconventional warfare might be carried out in the context of a political strategy 
in which the statesman, playing the part of a snake charmer^ would lull the 



6 Legal & Moral Constraints on Low-Intensity Conflict 

adversary into passivity by means of a nonaggression pact or an agreement 
defining spheres 
Kautilya's India, 



defining spheres of influence. As Adda Bozeman has argued, with reference to 



What we have ... on this subcontinent and in hinduized Indo-China and 
Indonesia are vast fields of interstate relations in which each king, guided by the 
principles ofartha, was forever trying to "acquire and maintain the earth," i.e., to 
outwit and conquer his neighbors. This unabashed philosophical and actual 
commitment to power and victory, whether rendered through the symbolism of 
geometry or that of chess - pursuits in which Indians excelled - was obviously 
incompatible with anything resembling international law or international organiza- 
tion as these terms are understood in the Occident. The only kind of law governing 
this Oriental state system was the law of the fishes (matsya nyaya) y in accordance 
with which the big fish eat the litde fish, might is above right, and right is in the 
hands of the strong. Inequality was postulated as the everlasting condition of 
political existence, power as the only measure of political worth, war as the normal 
activity of the state, peace as a lamentable condition of inferiority, and espionage 
as the most reliable, indispensable shield of royal fortune. Indeed . . . the skills of 
intrigue, tabulated and annotated under such tides as "Government based on 
Deceit'* and "The Administration of Subversion," were more highly prized than 
material power. . . 

Sun Tzu's The Art of War. 

While uncertainty surrounds its origins, Sun Tzu' s The Art of War was 
probably written between 400 and 320 B.C. The treatise's counsels to the ruler 
can be read at two levels: the tactical one, dealing with particular military 
stratagems for defeating an adversary, and the strategic and political one, aimed 
at shaping a long-term statecraft to bring about the enemy's gradual debilitation 
and eventual surrender. Some of the twentieth century's most outstanding 
revolutionary leaders, such as Mao Tse-Tung and Che Guevara, indicated that 
they profited gready from reading The Art of War at both levels. 

Sun Tzu shared Kautilya's basic assumptions about the nature of international 
relations. His intimate acquaintance with the dynamics of the Chinese State 
system led him to see war and violence as the norm rather than the exception, 
peace as little more than a truce of convenience, and cunning and deception as 
essential prerequisites to survival in a dangerous world. In the state of "violent 
peace" which Sun Tzu perceived as the regular condition of international affairs, 
unconventional warfare was a vital instrument of State policy. 

Like Kautilya, Sun Tzu recognized the high costs and risks of conventional 
war. Many of the Chinese States of Sun Tzu's time were fairly evenly balanced 
in their power capabilities. Large armies were difficult to raise, to train, to 
maintain in operational readiness over long periods of time, and to deploy across 
long distances over arid or mountainous terrain. Thus, any attempt to defeat an 
enemy by annihilating its armies in open combat and storming its cities was 



Coll 7 

fraught with innumerable dangers, not the least of which was the possibility that 
by the end of the war the enemy State might be so utterly destroyed and the 
victorious party so exhausted as to call into question the meaning of the entire 
effort. Hence, for Sun Tzu, the "unconventional approach to warfare", a vital 
dimension of which was the kinds of activities that today we would call 
"unconventional warfare", was indispensable. The truly intelligent statesman, 
argued Sun Tzu, sought to take his adversary's armies and cities intact following 
a prolonged period of psychological and moral softening up: 

Generally in war the best policy is to take a state intact; to ruin it is inferior to 
this. . . Do not put a premium on killing. . . To capture the enemy's army is better 
than to destroy it. . . For to win one hundred victories in one hundred battles is 
not the acme of skill. To subdue an enemy without righting is the acme of skill. . . 

The supreme excellence in war is to attack the enemy's plans. . . Next best is 
to disrupt his alliances. . . The next best is to attack his army. . . The worst policy 
is to attack cities. . . 

The softening up prior to ultimate victory was to take several forms. The 
enemy was to be deceived as to one's true intentions, long-term strategic 
objectives, and actual strength. Sun Tzu ranked the ability to deceive as the 
greatest of political virtues. The tools of deception were diplomacy, espionage, 
and the use of "disinformation" and "active measures" to confuse the adversary, 
sow self-doubt and divisions within him and alienate him from his allies. It was 
essential to attack the enemy's "mind", his confidence and sense of identity. 

Psychological warfare should not refrain from employing the more violent 
instruments of unconventional warfare. A dissatisfied minority or faction within 
the enemy State might be encouraged to revolt. An unusually successful enemy 
general or political leader might be assassinated. 

In the kind of adversarial strategy that Sun Tzu saw as proper to most States 
in an anarchical international system, victory was facilitated by an understanding 
of "how to use both large and small forces." Sun Tzu's counsels on this point, 
as with most others throughout his treatise, apply not only at the tactical military 
level, but also at the much higher level of strategy and policy. "There are 
circumstances in war when many cannot attack few, and others when the weak 
can master the strong. One able to manipulate such circumstances will be 
victorious." Victory required an understanding of the different modes of 
warfare. In some situations, the use of conventional war ("large forces") might 
be appropriate, while in others the whole spectrum of unconventional warfare, 
from special forces and unconventional warfare to guerrilla war, subversion, 
propaganda, and psychological and political warfare ("small forces") was the most 
fitting policy instrument. 

While The Art of War 's premium on unconventional warfare and deception 
grates liberal sensibilities, there are those who have seen Sun Tzu's doctrine of 



8 Legal & Moral Constraints on Low-Intensity Conflict 

war as far more humane and reasonable than traditional Western conceptions of 
warfare. Sun Tzu's emphasis on "the unconventional approach", his elegant 
strategy of overcoming an adversary with as little destruction as possible, and his 
aesthetic disdain for indiscriminate brutality prompted Liddell Hart to speculate, 
somewhat disingeniously, that if European statesmen and generals around the 
turn of this century had imbibed Sun Tzu's theories, the course of both World 
Wars might have been far different. 

Machiavelli's The Prince. 

Perhaps the most famous expositor of "violent peace" in the Western tradition 
remains Niccolo Machiavelli (1469-1527). The Prince belongs to the same genre 

Q 

as the Arthashastra and The Art of War. It is a manual for political and military 
success addressed to the ruler of a State in a highly anarchical system of 
international relations. While debate continues on the true nature of Machiavelli 
and his work, many readily agree with Leo Strauss's estimate of Machiavelli as 
"a teacher of evil". He was also a gifted humanist and patriot. 

Although much of The Prince deals with how a political adventurer may seize 
power in a State and keep it against the intrigues of his domestic opponents, there 
is also an implicit theory of statecraft and warfare. To keep power, a prince not 
only must eliminate his internal enemies; he also must guard against the perpetual 
machinations of rival States seeking to conquer his own State. Moreover, success 
in expanding the size and power of his State may strengthen the prince's domestic 
position and give him the legitimacy he so badly needs. So, Machiavelli 
developed a doctrine for success in diplomacy and war. And its core elements 
were, as in the doctrines of his Oriental counterparts, dissimulation and deception 
accompanied by various forms of unconventional warfare as a substitute for, or 
at least a requisite prelude to, direct military assault against foreign rivals. 

In diplomacy, as in his dealings with his own subjects, it was important for 
the prince to disguise his true intentions. In fact, if one had to choose, it was 
better to appear to be a good man than to be a truly good man. As with Sun 
Tzu, propaganda, disinformation, and active measures designed to confuse and 
paralyze the adversary were essential. 

The prince also should be prepared to resort to the entire panoply of violent 
subversion: support for factions within an enemy State seeking to overthrow the 
existing regime; assassination of selected foreign leaders; the nurture, through 
money and other means, of civil war in a State to weaken that State and its allies 
and increase the power of one's own; and any other form of treachery and covert 
violence available. Unconventional warfare was to be carried out in the context 
of a diplomacy of "normalcy" and under the cover of the most solemn assurances 
by the prince concerning his own piety, integrity, and devotion to peace. 



Coll 9 

Although some of the best contemporary minds looked at Machiavelli with 
disdain, and the sovereigns of Europe were quick to dissociate themselves 
publicly from his teachings, the actual course of international politics in the 
second half of the sixteenth century served as a vast canvas on which the practices 
counseled by The Prince were richly illustrated. The long struggle between 
England and Spain from 1559 to 1604 remains a classic case study in the dynamics 
of violent peace and unconventional warfare. While Spain sought hegemony 
over Europe, England was moved by the desire to stop this hegemonic drive and 
break open Spain's monopoly over the New World. 

During the two decades of violent peace and "cold war" that preceded the 
outbreak of actual hostilities in 1588, both powers, well aware of the difficulties 
entailed in attempting open war against one another, resorted to numerous forms 
of unconventional warfare. Elizabeth I encouraged and helped to finance English 
expeditions directed against Spanish colonial possessions in the Caribbean and 
South America. To the protests of the Spanish ambassador, the Queen responded 
by feigning displeasure over, and disclaiming responsibility for, the acts of pillage 
and plunder carried out by her unruly subjects. She also looked the other way 
while an extensive proxy network developed among English, French Huguenot, 
and Dutch privateers to harass the Spanish lines of communication with the Low 
Countries across the English Channel. Among the English privateers and their 
backers were some of her most trusted counselors and financiers. Religious and 
political passions blended with economic motives and Elizabeth's own larger 
strategic objectives in tightening the bonds of this proxy network. The Queen 
also actively intervened in the Dutch revolt against Spain by providing sanctuary 
for the Dutch rebels, assisting with arms and money (and eventually troops), and 
intervening in France's budding civil-religious war on behalf of the anti-Spanish 
faction. Under the leadership of the formidable Francis Walsingham, Elizabeth 
also developed an espionage network second to none in Europe. 

For his part, Philip II of Spain showed a similar grasp of the potentialities of 
unconventional warfare. His ambassadors in London disbursed large sums of 
money throughout a wide network of dissatisfied English Catholics willing to 
assassinate Elizabeth and replace her with either the Catholic Mary Stuart or 
Philip himself. He sent subsidies to prominent Catholic nobles in Scotland, to 
encourage them to depose the Protestant James VI and invade England from the 
north. Eager to isolate England diplomatically in preparation for an invasion, and 
hoping to turn France into a docile Spanish satellite, Philip fanned the fires of 
civil and religious discord in France by financing the Catholic League, so that 
French power would be unable to assist England at her hour of need. Eventually, 
Spanish troops were involved in the French civil war in support of the League. 
Meanwhile, on the eve of the Spanish Armada's attempt to invade England in 
the summer of 1588, Philip's representatives were busy negotiating a possible 
diplomatic settlement with the English at Borbourg. The king had made it clear 



10 Legal & Moral Constraints on Low-Intensity Conflict 

to his Council of State, though not to his diplomats, that the negotiations' chief 
purpose was to lull England into slackening its own military efforts. 

The most fertile soil for unconventional warfare is an international system 
where the sense of membership in a society of States bound by certain common 
rules and values has been gravely weakened. That was true of Sun Tzu's China, 
Kautilya's India, and Europe in the second half of the sixteenth century. The 
bitter religious antagonisms between Catholics and Protestants, and the rise of 
new and powerful nation-States eager to assert themselves on the stage of 
international politics had helped to sunder the fragile sense of community 
inherited from the Middle Ages. Religious and political differences were per- 
ceived as more significant than common values and interests, and remained so 
until well into the next century when the Peace of Westphalia (1648), acknowl- 
edging the exhaustion into which all the great powers had sunk by virtue of the 
Thirty Years War, put to rest the religious struggle by formalizing the principle 
of "cuius regio, eius religio". The signatories of the Peace also recognized that, 
despite their differences, they were bound into a society of States by a common 
Christian culture, a developing system of international law, and the principle of 
the balance of power. 

It is interesting to note that the incidence of unconventional warfare in Europe 
fell markedly following 1648 and did not return to the high levels of the second 
half of the sixteenth century until well into our own times. The breakdown of 
European international society that accompanied the First World War; the 
subsequent appearance of ideological divisions, rivaling the earlier religious 
hatreds, in the form of Communism, Fascism, and Nazism; the emergence of 
powers such as Hider's Germany and Marxist Russia unwilling to accept the 
cultural values of the liberal democracies and ready to exploit the principles and 
rules of international law for the purpose of subverting and overturning the 
existing balance of power; the evolution of the European-dominated interna- 
tional society of the nineteenth century into a highly diverse multicultural system 
of States; and the nearly universal recognition of the increased economic costs 
and poHtico-military risks of conventional military force; all these factors 
provided an ideal setting for the recrudescence of unconventional warfare in the 
twentieth century. 

Liberal Democracies and Unconventional Warfare. 

The traditions and institutions of liberal democratic societies render them 
vulnerable to unconventional warfare, and make it difficult for them to under- 
stand its nature and develop appropriate counter-strategies. Modern liberal 
democracies are the product of a set of traditions and ways of looking at the 
world, spanning several centuries, that in turn were shaped by Christianity, 
liberalism, and capitalism. From Christianity the modern democratic State has 



Coll 11 

borrowed notions about the brotherhood of man, the desirability of universal 
peace and reconciliation, the high value of forgiveness and compassion, and the 
undesirability of deception as an instrument of politics. 

From the broad philosophical universe of liberalism modern democracies have 
imbibed a view of history as progressive and tending towards greater rationality 
and harmony. Man and society are seen as capable of undergoing substantial 
moral improvement. The liberal tradition tends to view war as a retrograde 
human aberration, an unfortunate holdover from less enlightened days which 
the enlargement of human understanding gradually will render into oblivion. 
The intellectual heirs of Sun Tzu and Machiavelli believe that war is a rational 
instrument of politics, no different from diplomacy or other "peaceful means'* 
in its essential character as a means for the acquisition of power, and whose 
appropriateness at a particular moment is determined solely by expediency rather 
than morality. Liberalism, on the other hand, tends to see war as the Christian 
tradition has done: as a last resort, a basically evil alternative justified only by the 
necessity of defense against the even greater evil of aggression and conquest. For 
liberals, war is an abnormal state that periodically punctuates the more natural 
condition of human peace and harmony. 

From its basically optimistic and progressive temperament, liberalism derives 
the strong hope that modern man will come to see the senselessness and waste 
of violence and will learn to avoid it. The invention of weapons of mass 
destruction has only reinforced the earnestness underlying this widely shared 
liberal hope. The irrationality of nuclear war, the danger of conventional conflict 
crossing the nuclear threshold, and the exorbitant costliness of conventional 
conflict itself, suggest to many liberals that since nations need to develop peaceful 
international mechanisms for settling their differences, they actually will do so. 

Capitalism has been another powerful contributor to the general disdain with 
which liberal democracies tend to view war. In spite of its detractors' arguments, 
capitalism during the twentieth century has been found more often on the side 
of those forces supporting diplomatic accommodation and peaceful resolution of 
conflicts than on the side urging war. This was true of the highest business and 
financial circles of Great Britain and the United States prior to the outbreak of 
World War I and during the 1930s. It continues to be true today with regards 
to the world's large multinational corporations. By the end of the nineteenth 
century, it was already becoming apparent to some observers that, although a 
future general war might provide possibilities for great profit to selected industries 
in certain countries, on the whole its destructiveness would deal a heavy blow 
to the increasingly sophisticated and fragile network of international trade, 
investment and industrial production undergirding the world economy. By 1914, 
most capitalists in Great Britain and France, and even many in Germany, shared 
this perception and were, therefore, worried about the darkening clouds on the 
international political horizon. Their fears did not prove to be unfounded. The 



12 Legal & Moral Constraints on Low-Intensity Conflict 

legendary tales of capitalists who made large fortunes out of World War I need 
to be balanced by an account of the many more who were ruined or adversely 
affected by it. 

Today, capitalism is on balance a force for international political restraint and 
accommodation. Radical critics who point to the connections between large 
capitalist firms and the world's military establishments tend to downplay other 
more significant dimensions of the impact of capitalism on international politics. 
At the height of the Cold War, Gulf Oil happily pumped oil in Angola under 
the protection of Cuban troops, while its Washington lobbyists pushed for a 
diplomatic understanding with the Soviet-backed Luanda government and a 
cutoff of aid to the anti-Marxist rebel Jonas Savimbi. In Sandinista Nicaragua, 
Exxon maintained its refineries in top working condition for many years, while 
resisting the Reagan Administration's policy of isolating that country economi- 
cally and politically. In early 1988, when most of America's large multinationals 
were engaged in a scramble to secure new economic opportunities in the USSR 
under the umbrella of perestroika, the Chairman of the Board of IBM politely 
declined to sign an innocuous appeal to President Gorbachev for greater religious 
freedom, apparently for fear of offending Soviet sensibilities. Throughout the 
Cold War, American business circles supported a strong defense and large military 
expenditures for deterrent purposes, but they wanted the competition between 
the superpowers to remain carefully controlled, so as not to disturb the expansion 
of international trade, investment, and the processes of wealth-creation. Today, 
Western multinational corporations are the strongest advocates of expanding 
trade and investment ties with Iraq and Iran, in spite of the massive evidence that 
both countries are trying to develop nuclear weapons and Iran remains a major 
backer of terrorist groups in the Middle East. 

There is another significant way in which capitalism indirectly reinforces the 
liberal democracies' vulnerability to unconventional warfare. The fusion of 
modern democracy with a capitalist economic system has produced societies 
whose highest reason for being is the unlimited acquisition and enjoyment of 
material goods. The Jeffersonian ideal of the pursuit of happiness, hedonistic 
enough in 1776, has become even more so in the succeeding two centuries. The 
ultimate standard by which liberal democracies measure themselves, the goal to 
which all political parties aspire, and the test by which all incumbent politicians 
are judged, is success in securing ever higher levels of what Hobbes called 
"commodious living." By fostering consumerism and materialism, and by 
glorifying individualism to the point of sometimes condoning selfish and anti- 
social attitudes, modern capitalism provides a less than fertile soil for the nurture 
of the martial virtues and a poor climate for the acceptance of war as a tragic but 
unavoidable part of life for which a democracy's citizens must be ever ready. 

If the traditions and leading ideas of liberal democracies do not prepare them 
well for the challenges of unconventional warfare, neither do their predominant 



Coll 13 

political institutions. Democratic political systems are adversarial by design. They 
foster pluralism of perspectives and interests, and a political process which prizes 
combativeness, partisanship, and the pitting of factions against one another. There 
are always opposition parties thirsting for political blood, and a vigorous free press 
conscious of its duty to promote public debate and eager for fame and profit. 
Unless they are faced with an immediate, overwhelming threat, democracies find 
it difficult to fashion a coherent foreign policy commanding the solid support of 
their contending domestic factions. 

Unconventional warfare is an effective instrument of aggression against 
democracies and their allies. The subtle, unconventional and generally covert 
nature of unconventional warfare avoids violence that crosses that threshold 
above which a democratic populace might be rallied to respond. While conven- 
tional aggression might tear a democratic society away from the pursuit of 
commodious living, unconventional warfare most likely will not. It is also 
obvious that the highly sophisticated, technological infrastructures underlying 
the economic systems of many democratic societies are highly vulnerable to forms 
of unconventional warfare such as terrorism and urban guerrilla warfare. 

Moreover, unconventional warfare, as its great theorists and practitioners 
always have understood it, usually takes place in the context of a process of 
diplomatic entreaties designed to lull its victim into relaxing its defenses. Within 
every democratic society there are many individuals of unquestioned integrity 
and intellectual acuity who will interpret the adversary's diplomatic moves, not 
as the strategy of Kautilya's "snake charmer", but as good faith efforts towards a 
reasonable settlement. They will stand up and call for a reciprocal response 
involving a degree of good faith similar to that which they imagine the adversary 
to have. When resistance arises to their suggestions, many of these individuals 
will accuse the government of their own democratic society of being the main 
obstacle to peace. The ensuing recriminations, divisiveness, and intellectual 
confusion generated by what inevitably becomes an acrimonious and highly 
partisan debate further weaken the democratic State's foreign policy and its 
bargaining position versus its adversaries, most of whom have no similar domestic 
problems hampering their policies. 

While the record of the Western democracies in countering the unconven- 
tional warfare waged by the fascist powers in the 1930s is hardly reassuring, it 
is still an open question whether over the long run democracies are structurally 
incapable of successfully responding to unconventional warfare. It may be that, 
in spite of their severe handicaps, democracies can rally the requisite determina- 
tion, unity of purpose, and political shrewdness necessary for dealing with 
unconventional warfare. Modern democracies have an impressive array of policy 
instruments with which to tackle the problem, if they choose to act. Their 
economic prowess gives them leverage with which to exert costly pressure on 
their adversaries. Their technological and military capabilities give them conven- 



14 Legal & Moral Constraints on Low-Intensity Conflict 

tional military options with which to raise the costs to the enemy of resorting to 
covert war. And finally, democracies can, and occasionally have been able to, 
wage unconventional warfare effectively. 

No serious study of unconventional warfare can avoid the morally and 
politically problematical question of whether democracies should "answer fire 
with fire", that is, engage in selective unconventional warfare of their own as a 
means of compelling an adversary to desist from its own unconventional warfare 
efforts. If economic and diplomatic sanctions have proven ineffective, if the 
mechanisms of international law and organization are unavailable or have failed, 
if direct war and conventional military options are unadvisable because of their 
high costs, unconventional warfare may be the appropriate instrument with 
which a democratic society should defend itself and its allies against an adversary's 
strategies of violent peace. A resort to unconventional warfare under such 
circumstances serves the joint purposes of defense against the existing attack and 
deterrence to future ones. Alexander Hamilton laid the philosophical foundations 
for the argument that democracies should be prepared to resort to defensive 
unconventional warfare when he argued in general terms that, as a matter of 
common sense and practical survival, the United States could not guide its 
international behavior by the same practices and institutions that govern its 
domestic life. 1 

The rejoinder to the above argument, as articulated by critics from Thomas 
Jefferson down to our own day, takes several forms. First, there is the claim that 
democracies should not stoop to the immorality that unavoidably accompanies 
unconventional warfare. This particular claim is rooted in the Jeffersonian view 
that, as Paul Seabury put it, "both the means and ends of American foreign 
policy. . . should be always judged against the highest standards of American civic 
values. . . the moral character of our civilization should be reflected both in the 
ways in which we deal with other nations, and in the ultimate purposes to which 
we aspire in these dealings. . ," 19 A second kind of claim asserts that in resorting 
to unconventional warfare democracies corrupt themselves. Supposedly, the 
practice of Machiavellianism in one's dealings abroad produces Machiavellianism 
at home; deception, secrecy and treachery in foreign policy lead to the cultivation 
and spread of similar attitudes and values within the domestic political process. 20 
Third, there is the more pragmatically oriented claim that, given their peculiar 
traditions and institutions, democracies are ill equipped to carry out unconven- 
tional warfare, and that their attempt to do so often winds up in failure, in moral 
and political embarrassment both internationally and domestically, and in loss of 
the "moral high ground" with all its attendant intangible benefits. 21 

These arguments against the employment of unconventional warfare by 
democracies need to be taken seriously, but they do not make a foolproof case. 
At most, they remind us of the pitfalls involved in "fighting fire with fire." 
Intellectually as well as morally, the most relevant question is not whether 



Coll 15 

democracies should resort to defensive unconventional warfare, but under what 
circumstances, and with what kinds of limitations, restraints and provisos such 
resort should be countenanced. 

Unconventional Warfare and International Order. 

In theory, the written and unwritten rules and institutions of international 
society allow democratic States to defend themselves against unconventional 
warfare. The chief framework of international law, the United Nations Charter, 
explicitly prohibits the use of force in international relations for aggressive 
purposes. The Charter was written with a view to the kinds of "open" wars of 
aggression, such as World War II, in which clear aggressors marshall their 
conventional military might to conquer their neighbors. In such wars, it is fairly 
easy not only to determine who the aggressor is, but also to verify the fact that 
an aggressive attack is taking place. The Charter's framers were, for the most part, 
hard-headed statesmen; they included men such as Dean Acheson and John 
Foster Dulles with practical experience in foreign affairs and vivid memories of 
the 1930s. Had they surmised that the future course of international politics 
would be marked more by violent peace and unconventional warfare than by 
invasions of panzer armies, they would have had no trouble seeing that the 
proscription on aggressive force should embrace the subtle instrumentalities of 
unconventional warfare as well as the traditional means of direct conventional 
war. 

The Charter also was realistic enough to recognize that the prohibition of 
force in international relations should not extend to defensive uses of force. This 
is the meaning of the celebrated Article 51, which states that "Nothing in the 
present Charter shall impair the inherent right of individual or collective 
self-defense if an armed attack occurs. . ." It would be wrong to read any 
convoluted interpretations into the meaning of self-defense, or to argue that 
"self-defense" is an excessively narrow concept that ties the hands of democratic 
societies in responding to aggression. Self-defense implies the right to defend 
oneself, as well as to inflict whatever degree of force is necessary to deter an 
adversary from future attacks. Article 51 was not intended to serve as a 
straightjacket for victims of aggression. 

In practice, international law and the United Nations Charter have not proven 
very helpful to democracies facing unconventional warfare. Three problems help 
to explain why. 

The Problem of Inquiry. 

By its very nature, unconventional warfare leaves as few trails as possible. 
Conclusive, incontrovertible evidence of a party's guilt is hard to come by. The 



1 6 Legal & Moral Constraints on Low-Intensity Conflict 

East bloc States that, in the early 1980s, sent arms to Cuba and Nicaragua for 
transhipment to the Salvadoran guerrillas, made sure that they did not include 
Soviet-made weapons. The bulk of the arms came from U.S. stockpiles captured 
by North Vietnam during the Vietnam war, so that the guerrillas could claim 
that their arms were American-made, and that they had captured them in the 
course of their own military operations against the U.S. -assisted Salvadoran army. 
Political assassinations are frequently carried out by individuals having no 
ideological connections whatsoever to the entity that employs them for their 
task. If the Bulgarian intelligence services were indeed behind the assassination 
attempt against the Pope in 1981 , one can expect that they would have used, not 
a disgruntled radical leftist but a right-wing extremist such as Ali Mehmet Agca. 
The captured Grenada Papers show that the top Grenadian leadership intended 
to make available to the Soviet Union and Cuba the large "civilian" airport under 
construction at Point Salines; yet when the Grenadians asked the Soviet Union 
for direct financial aid to help them complete the airport, Foreign Minister 
Gromyko told them that this was out of the question and that Grenada should 
seek a loan from the IMF instead. Fidel Castro, acknowledged by most Latin 
Americans of the right and the left as an active supporter of violent revolutionary 
movements in the region for nearly three decades, was superbly skillful in blotting 
out any evidence of such support. Similarly, during the last three years the Serbian 
government of Slobodan Milosevic has stoutly denied giving any significant 
support to the Bosnian Serb armies that have ravaged large sections of Croatia 
and Bosnia-Herzegovina. Indeed, in a script right out of Machiavelli's Prince, 
Milosevic has even attempted to paint himself as an honest arbiter between the 
Bosnian Serbs and their Moslem enemies. Whereas conventional military attacks 
are susceptible to fairly straightforward processes of inquiry, and hence to 
authoritative determinations that armed aggression has taken place, unconven- 
tional warfare is not. 

The problem of inquiry has an additional dimension inherent in the institu- 
tions of liberal democratic societies. The news media, which might be expected 
to act as effective ferrets, often wind up focusing on the covert activities of 
democratic societies and neglecting those of their adversaries. This should not 
be surprising. Journalists are as full of biases as the rest of us mortals. They are 
frequently liberal, suspicious of their governments to the point of cynicism, and 
full of crusading zeal to expose and cleanse the supposed impurities of their own 
societies. They are skeptical of information or intelligence supporting govern- 
ment claims, and their investigative processes and reporting are affected by the 
partisan and combative nature of the democratic political process of which they 
are an integral part. Among the first news item to reach the United States from 
Grenada following the 1983 intervention was a report of the discovery of a 
substantial cache of old Springfield rifles at a large warehouse near St. George's. 
The reporters' subtle inference, explicidy articulated by many editorials ridiculing 



Coll 17 

the Reagan Administration's supposed alarmism, was that this was the extent of 
the grave military threat posed by the Grenadian regime against its Caribbean 
neighbors. Only somewhat later did reports begin to filter back indicating that 
the total supply of arms found on the island exceeded the wildest estimates of 
U.S. intelligence both in numbers and in technological sophistication. Enough 
modern arms of high quality were found for an army of 10,000 (in a country of 
barely more than 100,000 inhabitants). Many of them were of a clearly offensive 
nature. Also discovered by U.S. forces, and somewhat downplayed by the 
media, were unconventional treaties between the Grenadian regime and various 
Soviet bloc States, providing for the supply of even more weaponry well into 
1985. 

At a more practical level, unconventional warfare by authoritarian adversaries 
is much more difficult to investigate because of their adeptness at deception and 
manipulation of information, which in turn is facilitated by the closed and 
secretive nature of their societies. Hence, by a combination of default, inertia, 
and deliberate purpose, inquiry into unconventional warfare against liberal 
societies receives less emphasis on the evening news or the front page of The New 
York Times than revelations of involvement by democratic governments in covert 
operations. 

The problem of inquiry lends itself to skillful exploitation by the architects of 
unconventional warfare. The disciples of Sun Tzu know the importance of 
dissimulation, and they work hard to take advantage of the pluralism and 
partisanship within democratic societies by sowing skepticism and confusion 
about their activities. Perhaps no case illustrates this better than Nicaragua's long 
involvement in the Salvadoran civil war in the 1 980s. The first State Department 
reports in 1981 documenting arms shipments from Nicaragua to El Salvador were 
received by the U.S. media with wide skepticism bordering on hostility. It did 
not make much of a difference that shortly thereafter the Democratic-controlled 
Permanent Select Committee on Intelligence, which had access to the relevant 
classified information, found in two separate reports in late 1982 and mid- 1983 
that the evidence of Sandinista and Cuban support for the Salvadoran guerrillas 

27 

was ample and credible. Nor did it matter that successive defectors in 1983, 
1984, and 1987 respectively from Nicaraguan counter-intelligence, the Cuban 
Ministry of Planning, and Cuba's intelligence services (DGI) confirmed that the 
involvement was not limited to the supply to weapons, but also included training, 
command and communication facilities in Nicaragua within driving distance of 
Managua, and economic assistance. While the evidence of illegal Nicaraguan 
involvement in the civil war was solid, it was rendered politically irrelevant by 
the fact that the Sandinistas succeeded in persuading important segments of the 
media and Congress that what was involved was a set of exaggerations and 
outright fabrications by a knee-jerk interventionist Administration obsessed with 
Nicaragua. 



18 Legal & Moral Constraints on Low-Intensity Conflict 

The Problems of Impartiality and Politicization. 

An effective international legal system capable of providing protection against 
aggression requires mechanisms for the impartial evaluation of whatever data the 
processes of inquiry supply. If the inquiry component of this requirement is 
weak, so is that of impartiality. The institutions of international law, like those 
of international politics, are hardly impartial. They are affected by the deep 
political, ideological, cultural and historical differences that divide international 
society. Agreement and consensus may exist on general principles such as the 
unacceptability of aggressive force and the legitimacy of defense, but every 
particular crisis calling for the specific application of these principles to often 
ambiguous and highly controversial situations brings out the profound differences 
in interests as well as outlook among the various participants in the international 
legal process. International law does not exist in a political vacuum. Its principles 
are cited and argued by governments representing specific national interests, by 
legal scholars with subjective political sympathies and philosophical predisposi- 
tions, and by international organizations whose voting majorities reflect a 
particular set of ideological, political and strategic biases. 

Undoubtedly, any future efforts to strengthen the role of international law 
and the United Nations in curbing aggressive unconventional warfare will have 
to come face to face with the problems of inquiry, impartiality and politicization. 
It may be that new and creative policies, approaches and institutions can be 
developed to reduce the size of these problems and diminish the friction which 
they presently pose for the authoritative functioning of the norms against 
aggression. Such hope, however, must coexist side by side with a degree of 
skepticism. The nature of the international system itself makes it highly resistant 
to any such innovative approaches. 

The existence of a society of States bound by certain general rules and 
reciprocal expectations (a proposition, incidentally, which is not accepted by all 
students of international politics) should not confuse us into thinking that there 
is such a thing as a single international community. At best, there is in today's 
world a large number of different international communities, each of them 
wrapped around a particular set of interests and values, some of them more 
inclusive than others, but none truly universal either in membership or in the 
scope of its objectives. The lines of membership in these communities are not 
always mutually exclusive; they often crisscross. But what does not exist and will 
not exist for a long time, despite the abstract language and fervent desires of world 
order theorists and many international lawyers, is a single international com- 
munity that speaks with one voice and represents authoritatively the widely 
diverse communities of interests and values which make up the real world. 

For this reason, although international law and organization deserve the 
support of liberal democracies, and although it is a morally and politically 



Coll 19 

worthwhile enterprise to explore the degree to which they may make a better 
contribution to defense and deterrence against aggressive unconventional war- 
fare, any serious study of unconventional warfare and of the perils it poses to 
liberal democracies in the late twentieth century will have to go beyond the 
realm of international law and organization and consider the wider range of policy 
responses available to democratic States, including some forms of unconventional 
warfare itself. If one accepts the proposition that effective deterrence contributes 
to peace and is therefore a friend of peace, then consideration of such a wider 
range of policy alternatives is a legitimate, indeed unavoidable, subject for 
discussion. 

The question of what constraints and guidelines should shape a democratic 
State's resort to unconventional warfare will be discussed elsewhere in this book. 
What has been established here, however, is that unconventional warfare is an 
old, persistent feature of international politics, present throughout different 
periods with varying degrees of intensity. To pretend that unconventional 
warfare does not exist, or that it is not a significant threat to American interests, 
is illusory. A democratic State's capability and will to resort to unconventional 
warfare can be a powerful deterrent against its adversaries' resort to it. At a 
minimum, it can raise the political costs to such an adversary of using unconven- 
tional warfare, and it can give the adversary a powerful incentive to explore a 
more constructive and accommodative relationship. Awareness of the dangers 
entailed in a democratic State's resort to unconventional warfare is salutary, but 
it should not be turned into a sweeping theoretical ban against it. Such clangers, 
too real to be ignored, only remind us of the need for further thinking on how 
unconventional warfare by democratic States should be carefully circumscribed 
so as to limit its potential harmful effects, while retaining its usefulness as one of 
several deterrent mechanisms available to democratic societies in a dangerous and 
highly unstable world. 

Even in the post-Cold War world unconventional warfare remains highly 
relevant. Shortly after the collapse of Communism in the fall of 1989 it became 
fashionable for a period of time to argue that whatever problems unconventional 
warfare or "low-intensity conflict" had posed for international order during the 
Cold War would become irrelevant in a world in which the Soviet Union no 
longer would be financing or otherwise supporting such forms of violence. By 
1995 such arguments seem less credible. It is true that Marxist-inspired insurgen- 
cies are passe these days, and that with the exception of Colombia, Peru and 
Guatemala, unconventional warfare has largely ebbed away in Latin America. 
Moreover, as the confrontation between the Soviet bloc and the Western alliance 
has disappeared, so has resort to unconventional warfare among the great powers 
against each other at present. Yet, various forms of unconventional warfare 
remain useful instruments of policy for a wide range of groups, nations and States 
in the Balkans, the Middle East and the Persian Gulf, Central Asia, and large parts 



20 Legal & Moral Constraints on Low-Intensity Conflict 

of Africa. These conflicts may not always be of strategic importance to the United 
States or even of marked significance to the fabric of international order, but in 
the future they could be. An understanding of the peculiar nature of unconven- 
tional warfare, the challenges it poses to liberal democracies, and its persistent 
recurrence will be as useful in the future as it has been in the past. 

Notes 

1. KAUTILYA (Shamasastry trans. 4th ed. 1951). 

2. BOZEMAN, POLITICS AND CULTURE IN INTERNATIONAL HISTORY 123 (1960). 

3. BOZEMAN, THE FUTURE OF LAW IN A MULTICULTURAL WORLD 128 (1971). 

4. SUN TZU, THE ART OF WAR 11 (Griffith trans. 1971). 

5. Id. at 77-78. 

6. Id. at 82-83. 

7. Id. at v-vi. 

8. MACHIAVELLI, THE PRINCE (1947). Equally important are Machiavelli's Discourses. 

9. STRAUSS, THOUGHTS ON MACHIAVELLI 9 (Bergin trans. 1958). For another interesting commen- 
tary, see Norton, Machiavelli and the Modes of Terrorism, Modern Age 304-313 (1985). 

10. see mattingly, the defeat of the spanish armada (1959); padfield, armada (1988); 
Martin & Parker, The Spanish armada (1988). 

1 1 . The more pessimistic strands within the Christian tradition, such as Augustimanism, have not been as 
deeply absorbed within the contemporary ethos of liberal democracies as the pacifist, liberal ones that focus on 
the Beatitudes and downplay the stark political realism implicit in the Pauline episdes. 

12. See Kant's essays on "Idea for a Universal History from a Cosmopolitan Point of View", "An Old 
Question Raised Again: Is the Human Race Constandy Progressing?", and "Perpetual Peace" in KANT, ON 
HISTORY (Beck ed. 1963). See also the discussions of the liberal tradition in international relations in WALTZ, 
MAN, THE STATE AND WAR (1954); WOLFERS 6c MARTIN, THE ANGLO-AMERICAN TRADITION IN 
FOREIGN AFFAIRS (1956). 

13. See Hans Morgenthau's trenchant refutation of the argument that capitalism causes wars in MORGEN- 
THAU, POLITICS AMONG NATIONS 51-57 (5th ed. 1978). 

14. Id. at 56. 

15. The appeal, signed by representatives of all the major religious groups and denominations in the United 
States, was circulated by the James Madison Foundation (Washington, DC), and President Reagan presented 
it personally to President Gorbachev at the Moscow summit of May 1988. 

16. HOBBES, OF THE NATURAL CONDITION OF MANKIND AS CONCERNING THEIR FELICITY 
AND MISERY, 102 (Oakeshott ed. 1968). "The passions that incline men to peace, are fear of death; desire of 
such things as are necessary to commodious living; and a hope by their industry to obtain them." 

17. WISKEMANN, EUROPE OF THE DICTATORS 1919-1945 (1966); SHIRER, THE NIGHTMARE 
YEARS 1930-1940 (1984). 

18. On Hamilton's views, see WOLFERS & MARTIN, supra n. 12 at 139-154; LANG, FOREIGN POLICY 
IN THE EARLY REPUBLIC (1985); and Seabury, Moral Purpose and American Foreign Policy (unpublished paper 
presented at a conference on Moral Purpose and American Foreign Policy sponsored by the New York-based 
Center for Religion and Society at the Smithsonian Institution, Washington, DC, Feb. 20-22, 1987). 

19. Seabury, op. cit., 2. 

20. BOYLE, WORLD POLITICS AND INTERNATIONAL LAW 293-5 (1985). 

21. This is one of the themes in TREVERTON, COVERT ACTION (1987). 

22. See AREND, PURSUING A JUST AND DURABLE PEACE: JOHN FOSTER DULLES AND INTER- 
NATIONAL ORGANIZATION (1988). 

23. See the extended discussion in Schachter, International Law in Theory and Practice V, Collected Courses 
of the Hague Academy of International Law 150-6 (1985). 

24. SEABURY & MCDOUGALL, THE GRENADA PAPERS (1984); VALENTA & ELLISON, GRENADA 
AND SOVIET-CUBAN POLICY: INTERNAL CRISIS AND U.S.-OECS INTERVENTION (1986). 

25. Arthur, Grenada and East Caribbean Security 177 Conflict Studies 20 (1985). 

26. For a careful study of the State Department's "White Paper" and of the highly politicized and biased 
reaction to it by much of the media and Congress, see FALCOFF, SMALL COUNTRIES, LARGE ISSUES: 
STUDIES IN U.S.-LATIN AMERICAN ASYMMETRIES 34-44 (Washington: American Enterprise Institute for 
Public Policy Research, 1984). 



Coll 21 

27. HOUSE COMM. ON INTELLIGENCE, SUBCOMMITTEE ON OVERSIGHT AND EVALUATION, 
STAFF REPORT: U.S. INTELLIGENCE PERFORMANCE ON CENTRAL AMERICA ACHIEVEMENTS AND 
SELECTED INSTANCES OF CONCERN, 97th Cong., 2d sess. 3 (22 Sept. 1982), and HOUSE COMM. ON 
INTELLIGENCE REPORT 98-122, 2 (13 May 1983). 

28. The defectors were, in the order given, Miguel Bolanos Hunter, Jose Luis Llovio Menendez, and Maj. 
Florentino Azpillaga. See the interviews with Bolanos Hunter in Washington Post, June 19, 1983 at A4. For 
Llovio Menendez, see "Cuban Defector Says Castro Finances Salvadoran Rebels' Arms Purchases", 
Washington Post, November 19, 1984 at A10. Maj. Azpillaga was a high official in the Cuban DGI who 
defected to the West in the summer of 1987. From August through November of 1987 Radio Marti (United 
States Information Agency) conducted extensive interviews with him, the transcripts of which are available. 
Much of the evidence of Nicaragua's illegal intervention in £1 Salvador has been gathered in MOORE, THE 
INDIRECT WAR IN CENTRAL AMERICA (1987), and TURNER, NICARAGUA V. UNITED STATES: A 
LOOK AT THE FACTS (1987). 

29. For a thoughtful exploration of the problem of impartiality in international law, see FRANCK, THE 
STRUCTURE OF IMPARTIALITY (1968). 



PART TWO 



LEGAL CONSTRAINTS ON LOW-INTENSITY CONFLICT: 
INTERNATIONAL LAW AND STATE SOVEREIGNTY 



Chapter II 

Low-Intensity Conflict and 
The International Legal System 



by 
John Norton Moore* 



I. Introduction 

One way of thinking about the legality of actions taken in response to 
"low-intensity" conflict is to inquire about the limits of State sovereignty. 
That is, to what extent will the limits of State sovereignty be regarded as absolute 
and to what extent will they yield to pressures to respond to sustained patterns of 
terrorism, democidet or massive human rights violations, or even uncon- 
trolled narcotics trafficking? Since I believe that conceptual discussion 
focusing on "sovereignty" is not the most useful way of clarifying the limits 
of permissible State intervention and use of force under the Charter — nor, 
indeed, is it even in the mainstream of the international legal approach to 
these issues over the last decade — this paper does not examine the 
low-intensity conflict issue in this "sovereignty" framework. The thrust of 
the legal realist and postlegal realist jurisprudential movements over the last 
half century has been to analyze by discrete recurring issues or classes and 
not principally in terms of doctrinal conceptualization, although the latter 
approach has continued to exert a pull like that of a distant body receding 
in space. Moreover, for years now international law has ignored "sov- 
ereignty" in imposing minimum human rights standards, and issues con- 
cerning the use of force have been dealt with not under the rubric of 
"sovereignty" but in terms of intervention theory, humanitarian interven- 
tion, collective defense and other areas of international concern. 

The range of relevant issues or claims concerning the limits of external 
intervention across the borders of third States in relation to "low-intensity 
conflict" seems to me primarily to relate at present to three categories, although 
there are others and each of these three can, in turn, be broken down into 
sub-categories. These three principal categories are: 



TCoined by Professor Rudy Rummcl of the University of Hawaii, democide refers to systematic or widespread 
acts of murder for any purpose. Its meaning is broader than that specified by the U.N. definition of genocide, 
from which killing for political reasons was excluded at the request of the U.S.S.R. 



26 Legal & Moral Constraints on Low-Intensity Conflict 

a. The extent to which force may lawfully be used to respond to sustained and 
serious low-intensity aggression, such as continuing State sponsored terrorism, 
which provides external assistance to insurgents or fuels other "secret warfare." 
Examples would include the Vietnam War in early stages, the secret war in Central 
America, ongoing Libyan support for terrorism, the bombing of the United States 
Embassy and the Marine Barracks in Lebanon and the taking of American hostages 
(and torture death of some) in Lebanon. 



b. The extent to which force may lawfully be used to respond to systematic and 
major human rights violations, including democide and genocide, whether or not 
associated with crimes against peace. Examples include the slaughter of civilians 
in Bangladesh prior to the Indian intervention, Pol Pot's largely ignored democide 
in Cambodia and, more recendy, Saddam Hussein's slaughter of the Kurds. 



c. The extent to which force may lawfully be used, if at all, to respond to sustained 
and intense narcotics trafficking. If, of course, a widely recognized government 
requests such assistance then there is likely to be litde issue under international law, 
provided such assistance meets the requirements of human rights and other relevant 
constraints under the law of war. If there is no consent, traditional international 
law would, in most such settings, deny any right of intervention through direct 
use of force. The ability of the drug trade to overwhelm and corrupt governments 
of small nations, and the new alliance of narcotics traffickers with insurgents, may 
require substantial revaluation of traditional constraints in this category. 

This paper will deal primarily with issues in the first category, although it 
may have some relevance for discussion of categories two and three. There 
is, for the most part, a rich literature concerning the principles and limits of 
humanitarian intervention dealing with category b; although, as we learn 
more about the prevalence of democide, this is a category that may need 
rethinking and a liberalization of criteria for response in settings of genuine 
democide or genocide. Moreover, we certainly could benefit from more 
effective international machinery to deal effectively with these crimes. 
Category c is more difficult for generalization and may be more context 
dependent than even Categories a and b. As this paper illustrates, however, I 
believe that there is a major conceptual problem in the present approach of 
many, including some international lawyers, to the Category a problem and, 
accordingly, this paper focuses on that issue. 

While I expect that the theme of this paper will be welcomed by many, it 
may be unwelcome to others. The task of a scholar, however, is not to please 
the audience but rather to pursue the truth. The truth we are pursuing here is a 
truth about how to reduce aggression, whether overt or covert. That is, it is a 
truth about reducing a major category of war and violence. The importance of 
truth concerning this critical issue places a special burden on all of us, scholars 
and policymakers alike, not to simply pursue gentle debate, but rather, vigorous 



Moore 27 

debate in the search for truth. In my judgment, we are urgently in need of "new 
thinking" in this area and the real control of low-intensity aggression awaits a 
broader understanding of a new paradigm. I hope that this paper will at least serve 
to begin the "new thinking" about the role of law in deterring low-intensity 
(and high-intensity) aggression even as it is certain to raise the decibel level of 
the debate. 

The simple but important message presented in this paper is that widely held 
models about the origins and control of violent conflict between nations, 
including the low-intensity conflict spectrum, are themselves part of the problem 
in the continuation of such violent conflict. These models are a part of the 
problem in so far as they lead to a focus on policies that in the real world fail to 
add to deterrence of the aggressive use of force and, conversely, lead to an 
avoidance of policies that can make a more substantial contribution to peace. 

The central symptom of this problem in the international legal system, as it is 
presently applied, is the system's all too frequent failure to systematically and 
strongly condemn the aggressive use of force, particularly in the low-intensity 
conflict spectrum, while simultaneously and perversely condemning and con- 
straining the use of defensive force in response to such aggression. The net effect 
in such settings is that the international legal system's contribution to the 
deterrence of aggression, particularly in the low-intensity conflict spectrum, is 
virtually zero. Thus, as widely applied, the legal system needlessly becomes largely 
irrelevant in dealing with a central challenge of our age. 

Indeed, in some settings, conventional wisdom, with the best of intentions 
and the worst of consequences, on balance has actually aided aggression, thus 
turning the legal system upside down. It is as though the international legal system 
itself were suffering from a severe auto-immune disorder that has turned on its 
own defenses to aggression. Fortunately, the cure for the auto-immune disorder, 
if not to the virus of aggression itself, is relatively simple. The remedy requires 
clear thinking about the nature of aggression and defense in the international 
system, coupled with a variety of policies intended to deter more effectively the 
entire spectrum of aggression. Such policies would include, with respect to the 
international legal system, enhancing the international systemic response against 
aggression and in support of defense, particularly regarding the low-intensity conflict 
portion of the spectrum. It must be understood that a legal system that treats the 
defensive response to overt or covert aggression the same as, or more severely 
than, it treats the aggression itself, is either irrelevant in the real world of conflict 
avoidance, or worse, it assists the aggressive attack. Unfortunately, though the 
cure may be simple, it will nonetheless be difficult to reeducate against powerful 
conventional myths that seemingly promote peace and restraint, but actually, add 
nothing to — or even undermine — the deterrence of aggression. 



28 Legal & Moral Constraints on Low-Intensity Conflict 

II. Low-Intensity Conflict in Context: 
Competing Models of Aggression and Deterrence 

Each generation has a favorite panacea for peace. From the turn of the century 
until World War I, it was the creation of machinery through which third parties 
could work to settle disputes between nations. From the aftermath of World War 
I until the present, there has been a major interest in creating effective interna- 
tional organizations for managing the peace. And from the mid-1960s until the 
recent revolution in the Soviet Union and its subsequent disintegration, the 
principal focus of efforts to bring peace in our time have focused on nuclear arms 
control. Although all of these traditional techniques for war avoidance have an 
important role to play, third-party dispute settlement and arms control, at least 
as panaceas, seem to be rooted in the belief that wars originate in disputes between 
nations, accidents, or spiraling arms races. The inadequacy of this etiology of 
conflict has led us to underestimate the serious theoretical and real-world 
difficulties in building effective international organizations to manage the peace. 

Within this intellectual tradition, the role of the international lawyer has been 
seen as one of seeking to reduce the lawful uses of force, thus progressively 
constraining the defensive response and increasingly treating both the aggressive 
attack and the defensive response as equivalent offenses against rational oppor- 
tunities for diplomacy and third-party legal settlement. This mind-set is prin- 
cipally responsible for a majority opinion in the Nicaragua case before the 
International Court of Justice that ignores the evidence of the "secret" or 
low-intensity Sandinista attack against El Salvador and the apparent perjury of 
Nicaragua's agent before the Court about Nicaragua's involvement in this attack. 
It reaches out instead to condemn the lesser United States assistance to the 
Contras, which was provided in response to Nicaragua's program of covert 
subversion. 

There is today, however, a powerful body of evidence that the principal 
international wars of the Twentieth Century — World Wars I and II, the Korean 
War, the Indo-China War, the Falklands War, the Iran-Iraq War, the war in 
Afghanistan, the conflict in Central America, and the recent Gulf conflict, among 
others — did not arise principally because of unresolved disputes (although they 
were a factor), accidents, or "arms races," but rather because of a synergy between 
two critical and necessary sets of conditions. The first set of conditions involves 
a typically totalitarian or, at least, non-democratic regime bent on the use of 
aggressive force to alter the contemporary political or territorial dispensation in 
fundamental violation of the United Nations Charter. The second set of 
conditions is a system- wide failure of deterrence. Systemic deterrence is here 
taken to embrace the strength of international organizations against aggression, 
the balance of power, military capabilities, defensive alliances, clarity about 



Moore 29 

intentions to respond to aggression, the strength of the international legal system, 
and the extent of economic interdependence. 

Where an aggressor is absent, as in United States-Canadian and Swiss-French 
relations, there is no risk of major war, even in the absence of deterrence. Where 
deterrence is present at effective levels, as it was in the North Adantic Treaty 
Organization (NATO) against Soviet power, war can be avoided even if there 
may be aggressive intent. Importandy, we should also note that the overwhelm- 
ing majority of aggressive regimes in this century have been totalitarian, or at 
least non-democratic, and that they tend to exhibit what I have elsewhere called 
"the radical regime syndrome" of a one-party political system with a repressive 
internal security system. Indeed, one of the most interesting connections in this 
respect, is that these regimes are not only aggressors in initiating major wars, but 
they are also engaged in slaughtering their own people. One current researcher 
believes that these regimes may have killed about four times the total number of 
people as have been killed in all of the major wars of the twentieth century 
combined. Hitler's Third Reich, Stalin's Soviet Union, Ho Chi Minh's Viet- 
nam, and Pol Pot's Kampuchea are examples. In contrast, democratic nations 
almost never attack other democratic nations or commit democide against their 
own people. 

If this model of a synergy between an aggressive regime (typically a radical 
regime that is also engaged in democide or other massive human rights violations 
against its own people) and a system- wide deterrence failure is the principal form 
of major international conflict in our time, then the policies most used in seriously 
working for peace are quite different than those which flow from the "conven- 
tional" legal, arms control, and peace studies models. The most useful policies 
include overall political engagement strategies (such as the Commission on 
Security and Cooperation in Europe (CSCE) process) to seek to promote more 
democratic regimes around the world as a major component of the foreign policy 
of democratic nations coupled with a variety of means to strengthen system- wide 
deterrence against aggressive threats from radical regimes. It is of critical impor- 
tance that we retain the military power to effectively deter such regimes (the 
Korean War partly resulted from a deterrence collapse driven by a precipitate 
United States demobilization after World War II); we must send clear deterrence 
signals (here see World Wars I and II; the Korean War; the Indo-China conflict, 
French and U.S. phases, particularly the U.S. post-Paris Accords phase; the 
Falklands War; and, most recently and dramatically, the Gulf conflict); and we 
must strengthen the overall international legal system to severely sanction 
aggression and, just as importantly, to strongly support defense against aggression. 

It is largely the difference between the treatment of aggression and the treatment 
of defense that measures the effectiveness of the legal system in deterring 
aggression-no^ the degree to which the use of force is outlawed. If an aggressor 
knows that a potential victim State or its allies will be condemned as much as the 



30 Legal & Mora! Constraints on Low-Intensity Conflict 

aggressor, if not more, for a defensive response against an aggressive attack, then 
the real- world legal system that sends the signal is simply irrelevant as a factor in 
war avoidance; or even worse, it may encourage conflict. This point is so 
important, and so pervasively misunderstood in much of the legal literature, that 
I will repeat it with emphasis: It is largely the difference between the treatment of 
aggression and the treatment of defense that measures the effectiveness of the legal system 
in contributing to the deterrence of aggression — not the degree to which the use of force is 
outlawed. Moreover, this effect may be magnified when — as the model posits — 
the non-democratic aggressor is little affected by internal criticism of "legal 
violations,*' but the responding democratic nation, precisely because it is demo- 
cratic, may be substantially inhibited or deterred by such a charge of illegality. 

Low-intensity conflict, it should be noted, seems also to fit the "new thinking" 
conflict model of an aggressive regime/deterrence failure synergy. In major part, 
although not exclusively, low-intensity conflict is simply a range of actions — 
from sporadic terrorism through sustained insurgency — pursued by insurgent 
groups or repressive regimes to attain their aggressive aims. Perhaps the major 
difference between low-intensity conflict and conventional warfare is that the 
ambiguity and low visibility of low-intensity attack escalate the effect in the 
"conventional" model of ignoring the attack and largely focusing the systemic 
response against the defensive response to the aggressive attack. Only when the 
aggression is as flagrant as the armored invasion of Kuwait in August 1990 — the 
first effort ever made to aggressively swallow a Member state of the United 
Nations — does the system clearly condemn the attack and support the defense, 
and even then the action was opposed by many. Suppose that Iraq had sought 
the same result through support of an insurgency within Kuwait; would the world 
community have responded as it did? Would it have responded at all? In this 
connection it might be noted that one of the "lessons" Libyan leader Moammar 
Qadhafi seems to have learned from the Gulf conflict is that Iraq should have 
pursued its objective by an indirect warfare or guerilla strategy. In a recent address 
to the Benghazi Military Academy, he told the graduates: "Had it [Iraq] sent 
guerrillas there, they would have occupied the whole region." 

III. The Role of Law in Aggression and Deterrence: 

A Case of Auto-Immune Disease as Applied to the 

Spectrum of Low-Intensity Aggression 

This paper should not mistakenly be read as an attack against international 
law. I believe that, as intended under the United Nations Charter, a system of 
law that vigorously condemns aggressive attack, whether overt or covert, and 
mobilizes in important ways that may predictably be known in advance to support 
the defensive response against aggression, is of the utmost importance in promot- 
ing a more peaceful world. Indeed, I would assert that we greatly underestimate 



Moore 31 

the important role a revitalized legal system could play. That legal system, 
however, must get back to basics. Aggression, whether overt or covert, must be 
clearly condemned. Defense, whether overt or covert, must be clearly supported 
and assisted. And it must be understood that it is the difference between the systemic 
treatment of aggression and defense that will largely determine whether the legal 
system will play a significant role in war avoidance. 

Sadly, however, there are many reasons to believe that, particularly when 
confronted with low-intensity conflict, the present international legal system 
suffers from a severe auto-immune disease that compels it to treat the defensive 
response more severely than the aggressive attack. Typically, many international 
lawyers will respond to United States assistance and efforts toward collective 
defense against low-intensity aggression, such as assistance to the Contras or the 
raid on Libya, by ignoring the aggressive attack which precipitated the U.S. action 
and by focusing their objections on the U.S. defensive response. By ignoring the 
long-term pattern of aggressive low- and mid-intensity attack, these "restric- 
tivist" or "minimalist" international lawyers characterize the response as an illegal 
"reprisal" to a single incident, or they over narrowly condemn the action as 
non-proportional, even if, in reality, the action is insufficient to end the 
continuing low-intensity aggressive attack. 

The following excerpts from the legal literature, condemning defensive 
responses to low-intensity attack, with little focus on the precipitating aggression, 
provide all too recurrent examples of the auto-immune disease. 

One of the best known American international lawyers is Professor Louis 
Henkin of Columbia University. I will pick on him first precisely because he is 
one of the most able international lawyers and is not a polemicist. In a recent 
chapter "Use of Force: Law and U.S. Policy" done for the prestigious Council 
on Foreign Relations, Professor Henkin argues in support of the majority opinion 
of the International Court of Justice in the Nicaragua Case (and against the 
dissenting opinion of Judge Stephen Schwebel of the United States): "Ex- 
travagant claims of right to act in self-defense have been the principal threat to 
the law of the Charter." Just think about that one! Does Professor Henkin really 
believe that World War II (remember that the Kellogg-Briand Pact already 
incorporated the non-aggression proscription of the Charter along with the right 
of defense), the Korean War, the Vietnam War, the Soviet invasion of Afghanis- 
tan or the recent Gulf conflict (occurring as Professor Henkin wrote his chapter), 
among others, resulted from difficulties in seriously differentiating aggression 
from defense? Does he really believe that Hitler, Kim II Sung and Saddam 
Hussein were actually confused as to the scope of the right of lawful defense? 
These "principal threats" to the Charter did not result from an expansion of the 
right of defense but rather because of a willingness by aggressive totalitarian 
regimes to commit aggression and a system perceived by them as unlikely to 
provide effective defense. True to form, Professor Henkin then goes on to 



32 Legal & Moral Constraints on Low-Intensity Conflict 

condemn out of hand United States actions in Grenada, Libya, and Nicaragua 
(which presumably he believes were the "principal threats" to world order. Note 
in this connection that the United States forces that were killed in the single 
terrorist act of the bombing of the Marine barracks in Lebanon exceeded United 
States casualties in all three of these criticized actions combined.). Professor 
Henkin singles out and condemns these three U.S. actions, despite literature 
supporting the lawfulness of United States actions in all three conflicts, in 
respectively three sentences, two sentences and four sentences. Good technique, 
Professor Henkin — one need not address the merits, factually or legally, of 
positions contradicting one's world view provided it can be said that the "alleged 
grounds have been widely challenged" or "the legal justification . . . was widely 
rejected." Certainly no specific factual or legal reasons for one's conclusions 
should be given. Professor Henkin further goes on to bring this message home 
to responses against terrorism — without differentiating whether such terrorism 
constitutes a sporadic act or an ongoing and sustained low-intensity attack: 

Nor is interstate force the solution to the scourge of terrorism, or even a significant 
deterrent to it. Little of contemporary terrorism is in fact perpetrated by States; too 
many States condone it, but surely the law does not — ought not — permit the use 
of military force against any State that does so. Even where a State is satisfied that 
another State has in fact perpetrated an act of terrorism against its diplomatic 
personnel, it is undesirable to permit the victim State to respond by military force 
against the territory of the perpetrator. The exceptions in article 51 were limited 
to cases of armed attack that are generally beyond doubt; a State's responsibility 
for acts of terrorism is rarely beyond doubt and difficult to prove to international 
satisfaction. Article 51 gives a right of self-defense, a right to use necessary and 
proportional force to defend against an armed attack. This right does not allow 
retaliation for past attacks. The response in self-defense to an armed attack must 
be necessary and proportional; an attack on the territory of a State perpetrating 
terrorism cannot be a "proportional" response and can hardly be the "necessary" 
response to defend against an act of terrorism already committed or even to deter 
future terrorist acts. The international community must develop stronger deter- 
mination and seek other remedies against terrorism. A State that has been the victim 
of an act of terrorism will have to pursue other remedies against States that it 
believes responsible and against the States that encourage, promote, condone, or 
tolerate terrorism or provide a haven to terrorists. 

Professor Falk, who had widely condemned as illegal United States actions in 
defending South Vietnam against North Vietnamese aggression, wrote an article 
condemning as illegal the United States/Republic of Vietnam incursion into 
Cambodia during the course of the Vietnam War despite use of Cambodian 
sanctuaries by 40,000 regular North Vietnamese troops in attacks against 
American and Republic of Vietnam forces in South Vietnam. 



Moore 33 

Professor Jordan Paust condemned as illegal President Ford's actions in the 
Mayaguez seizure, arguing: "... the American response was wholly dispropor- 

Q 

tionate to the Cambodian action — an action that was, moreover, lawful." 

Professor Francis Boyle has written widely condemning most United States and 
Israeli uses of force in recent years. Barely do his writings focus on the pattern of 
low-intensity aggressive attack triggering some of these actions. When Israeli troops 
went into Lebanon to stop persistent and ongoing terrorist attacks against Israel (not 
just threatened future attacks) Boyle said that "even assuming the contemporary 
international legal order still recognizes the regressive doctrine of preemptive 
self-defense, the Israeli invasion of Lebanon fails to meet that test as well." And 
when the United States sought to deter Libyan terrorism (and extreme oceans claims) 
by sending ships of the Sixth Fleet into international waters in the Gulf of Sidra 
where they had every right to be under international law in both peace and war, 
Boyle declared the U.S. action a breach of the peace under Article 39, and a threat 
of force in violation of Article 2(4) of the U.N. Charter. 

Specific constraints catalogued by the author that have been urged on the 
customary law right of defense over the past several decades include the 
following, among others: 

• interpretation of Article 51 of the Charter as limiting the customary law right 
of defense, particularly arguments that it prevents "anticipatory defense" or defense 
against action other than a brazen assault; 

• arguments that the right of defense does not include response against the 
territory of a State that is providing major assistance to or directing "indirect" 
aggression or secret warfare; 

• arguments that "proportionality" requirements prevent a response against the 
territory of a State engaged in continuing low-intensity aggression; 

• arguments that effective military responses (whether in the Mayaguez case, the 
Gulf conflict or the Central American conflict) are disproportional; 

• arguments that the right of defense under Article 51 ceases once an issue has 
been referred to the Security Council for action; 

• arguments that if a collective defense action does not immediately respond to an 
armed attack (for example it delays three months for a necessary military build-up 
and an effort at peacemaking) that the right is lost; 

• arguments that an occupied country has no one that can lawfully request 
collective defense assistance on their behalf following a successful blitzkrieg attack; 

• arguments that the right of defense in settings of civil conflict (even in the face 
of illegal assistance to insurgents) should not permit direct involvement of foreign 
nationals in the defensive military effort on behalf of the Government; and 

• arguments that the right of defense under Article 51 of the Charter does not 
include a right to require unconditional surrender and alter the government in a 
post-war setting (a restriction that would have come as a shock to the Allies in 



34 Legal & Moral Constraints on Low-Intensity Conflict 

World War II and that may have prevented the successful democratic transitions 
of Germany and Japan after that war). 

Most recently, abundant examples may be found relating to the overt Iraqi 
aggression in the Gulf conflict. Thus, Professor Abram Chayes questioned 
whether, following early Security Council resolutions on the Gulf conflict, there 
was any right of collective defense remaining under Article 51 of the Charter. 11 
Professor Al Rubin urged the extraordinary position (effectively supporting 
quick armored invasions) that following the total occupation of Kuwait there 
was no lawful Kuwait government to request collective assistance against Iraq's 
aggression. Professor Oscar Schachter, generally one of the most sensible 
observers of use of force law and who, in fairness, demolished the Chayes 
argument, opined with virtually no discussion that the coalition force bombing 
of Iraq was disproportionate and that it would have been illegal under Article 51 
of the Charter for the coalition to have gone to Baghdad and replaced the Saddam 
Hussein government. Professor Burns Weston, while conceding that the 
coalition action was lawful, condemned it as resulting from impermissible United 
States and British arm twisting in the Security Council. Even the Secretary 
General of the United Nations at one point proclaimed the silly proposition that 
after three months (to permit the necessary military build-up for an effective 
response and to give peace efforts a chance) the right of collective defense under 
Article 51 of the Charter had been lost. And, of course, the usual polemicists 
were actively at work. Former United States Attorney General Ramsey Clark 
worked with a "National Coalition to Stop U.S. Military Intervention in the 
Middle East" and toured the world charging the United States with war crimes 
and crimes against humanity in its conduct of the Gulf hostilities. A statement 
by Ramsey Clark said: 

The commission accuses the U.S. of preplanning war, blocking negotiations, 
controlling the media, manipulating the United Nations, deliberate genocide and 
other crimes against humanity and violations of the U.N. Charter and international 
law. 

Although Clark had previously expressed an intention to present evidence of 
Iraqi war crimes in Kuwait, the agenda released for his "war crimes tribunal" 

1 R 

included no such testimony. 

Similarly, William Arkin, Director of Military Research at Greenpeace, and 
Director of Greenpeace's Nuclear Information Unit, co-authored a report that 
focused on the environmental issues in the Gulf War. This report goes lightly 
on condemnation of Saddam Hussein's illegal environmental terrorism in the 
Gulf and projects an overall impression that the environmental damage in the 
Gulf conflict is really an inevitable part of "modern warfare." In a classic, and 
shockingly anti-environmental, example of the auto-immune disease, this "case 



Moore 35 

study" would seem to charge the United Nations coalition with causing as much 
damage to the Gulfs environment as the eco-terrorism of Saddam Hussein. 

Incredibly, there are even numerous examples of strenuous governmental 
efforts to exempt terrorists or others engaged in low-intensity aggressive attacks 
from normal national criminal justice systems. Neil C. Livingston gives the 
following account of efforts made by elements within the German government 
first to prevent the conviction of Mohammed Hamadi for the 1985 hijacking of 
TWA 847 and the torture murder of U.S. sailor Robert Dean Stethem, and then, 
to have him released in a hostage exchange after the terrorist was convicted 
despite their best efforts: 

[P]erhaps the greatest focus of attention has been on the Hamadi brothers, 
Mohammed and Abbas, who are incarcerated in Germany. Mohammed Hamadi 
was convicted of the 1985 hijacking of TWA flight 847 and the brutal murder, on 
board the aircraft, of a U.S. Navyman, Robert Dean Stethem, and in 1989 was 
sentenced by a German court to "life" in prison. In Germany, a life sentence means 
that Hamadi has to serve a minimum of 15 years before becoming eligible for 
parole. His brother, Abbas, by contrast, is serving a 13-year sentence for kidnapping 
two German businessmen (in an unsuccessful plot to trade them for Mohammed). 

In the middle of August, reports surfaced that the German government was willing 
to release the Hamadi brothers as part of any hostage/prisoner exchange. Accord- 
ing to the reports, the Hamadis were to be included in a comprehensive hostage/ 
prisoner exchange brokered by United Nations Secretary General Javier Perez de 
Cuellar. (President Bush subsequently indicated that he probably would be inclined 
to approve any deal reached by Perez de Cuellar with the kidnappers.) 

Senior U.S. officials say that the German government has long been attempting to 
unload the Hamadis in any case, primarily for political and economic reasons. The 
continued incarceration of the two brothers complicates German trade with the 
Arab world. That probably is one of the reasons why, earlier, the then West 
German government attempted in every way possible to prevent the prosecution 
of Mohammed Hamadi after he had been located on German territory by U.S. 
intelligence. 

Not only were the Germans reluctant to pick up Hamadi in the firsc place, U.S. 
officials pointed out, but the Bonn government demanded, after the United States 
officially requested his extradition, that there be an unprecedented extradition 
hearing and lineup to establish that the man captured really was Mohammed 
Hamadi. Incredibly, when the U.S. Attorney for the District of Columbia and 
U.S. Justice Department representatives arrived in Germany, along with a number 
of passengers who had been aboard the ill-fated plane, they found that the entire 
lineup was composed of what one of the terrorized passengers later described as 
"Hamadi clones." All were approximately the same height and were dressed in 
similar clothing. They even wore wigs and makeup designed to further obliterate 
their individual physical differences. 

Remarkably, though, the passengers had no trouble picking Hamadi out of the 
lineup, much to the chagrin of the German government, apparently. It was 
Hamadi's eyes, the passengers said later' — "They were like two burning coals." 



36 Legal & Moral Constraints on Low-Intensity Conflict 

Although it had few equities in the case, the distraught German government took 
the only action remaining to it to prevent the extradition of Hamadi to the United 
States: it decided to prosecute him in Germany. 

But the tale did not end even there. When it became clear that the evidence against 
Hamadi was overwhelming, the German government suggested to the United 
States that Hamadi may not have been an adult when he hijacked TWA 847 — that 
is to say, he was not 21 years of age at the time. This is a crucial distinction in 
German law, because if he was not 21 at the time of the crime he could have been 
sentenced as either a juvenile or an adult. Once again, to the dismay of the 
Germans, the United States easily proved that Hamadi was 21 — albeit just 
21 — when he hijacked the plane. That's when the German government, grasping 
at straws, suggested that he might not have been 21 when "he first thought of 
hijacking the plane." To make a long story short, Hamadi was convicted of the 
crime — thanks to a courageous German prosecutor and court composed of three 
judges and two lay jurors — and sentenced as an adult to the maximum penalty 
permissible under German law. 

In contrast to this typical "old thinking" among many international lawyers — 
and governments, I believe that, in reality, when faced with an ongoing pattern 
of aggressive attack, it is certainly within the right of individual and collective 
defense to take necessary and proportional actions to effectively end the attack, 
whether those actions are overt or covert. This right of defense is classic 
international law, not the fashionable contemporary inversion of this principle. 
Indeed, if we are serious about peace in our time, it is as incumbent upon the 
international system as a whole to ensure effective deterrence against the low-in- 
tensity spectrum, and, for example, against Libyan terrorism worldwide and a 
continuing pattern of Iranian-encouraged hostage-taking, as it is to deter Korean 
War or Gulf conflict style armored invasions. 

IV. Recommendations for Strengthening the 

International Legal System to 

Deal More Effectively with Low-Intensity Aggression 

Recommendations for strengthening the international legal system to deal 
with low-intensity aggression follow clearly if we have an accurate model of the 
most serious international conflicts. Thus, all of the following suggestions should 
be useful, as opposed to approaches that may make us feel virtuous but in the 
real world have little effect on promoting peace. These recommendations 
construct, in many respects, a prescription for promoting peace - - in so far as 
we can - - in our time, and as such, may be thought of as helpful in promoting 
a "new world order." 

A. While seemingly "weak," one of the most powerful foreign policy 
initiatives for the democracies is to systematically "engage" totalitarian regimes 
with the fundamental principles of the rule of law and democracy. The recent 
"rule of law" Charter of the Copenhagen round of the CSCE process points the 



Moore 37 

way. This observer, for one, believes that the recent democratic revolution in 
the Soviet Union probably resulted considerably more from influences stemming 
from the Helsinki human rights engagement process than from the entire history 
of U.S. — USSR arms control efforts. "Rule of law engagement" seeking to 
influence governments to move toward democratic principles will not be an 
overnight process. In this respect, a shift is already under way in U.S. foreign 
policy to encompass rule of law engagement, but requires even greater 
emphasis. 

B. The United States, in coordination with other democratic nations, must 
seek to greatly reinvigorate international condemnation of aggressive attack, 
whether overt or covert, and simultaneously must work to greatly reinvigorate 
the right of and support for defense against such aggression. These principles, if 
we make them twin core principles of democratic nations* foreign policy, have 
considerable ability to add to deterrence against aggression. 

C. In connection with strengthening the international system against aggression 
and in support of defense against aggression, we must apply these principles clearly 
to the low- and mid-intensity conflict spectrum. We must redouble efforts to 
condemn terrorism, hostage-taking, and aggressive indirect warfare and to 
support the full range of proportional defensive responses, overt and covert, 
against low-intensity and indirect aggression. 

D. A few illustrative initiatives that might be taken internationally in support 
of the above goals include the following: 

(1) The United States should consider creating a rule of law caucusing group 
within the United Nations system, gathering together nations from all regional 
groups which are prepared to support the above objectives. The purpose of this 
group would be to serve as a focal point within the United Nations system to move 
the UN system, and the whole world, toward recognition of the importance of 
the rule of law nationally and internationally. 

(2) The United States should coordinate with its allies to issue a statement 
repudiating the upside down majority opinion of the International Court ofjustice 
in the Nicaragua case, giving reasons as to why that decision, although well-mean- 
ing, actually encourages aggression in the real world. 

(3) The United States should seek to coordinate common democratic nation 
"white papers" exposing radical regime campaigns of low-intensity conflict, 
including attempted governmental takeovers, hostage seizures, and terrorism that 
is directed against civil aviation and other targets. 

(4) The United States should initiate a serious international effort to explore ways 
to meaningfully encourage deterrence applied at a personal level to regime elites 
engaged in international aggression, whether low-intensity or high-intensity. An 
effort at holding war crimes trials for Saddam Hussein is one example of seeking 
to apply personal-level deterrence. Deterrence of aggression must include deter- 
rence of regime elites, particularly in radical regime settings. We have for too long 
focused on deterrence against a nation as an undifferentiated totality. To the extent 



38 Legal & Moral Constraints on Low-Intensity Conflict 

that the radical regime syndrome is a major component of the problem, however, 
it may even be that radical regime elites should be the primary focus of democratic 
nation deterrence strategies. 

(5) Consistent efforts should be made internationally to foster understanding that 
the low-intensity conflict spectrum, as with the high-intensity spectrum, requires 
policies that will ensure effective deterrence. Without strategies of effective 
deterrence, it can be expected that low-intensity, State-sponsored violence will 
continue and possibly accelerate. I, for one, believe that the generally weak 
response of democratic nations to such low-intensity attack over the last three 
decades is a major part of the synergy contributing to the continuation of such 
attacks. 

E. Finally, there is a series of actions that the United States and all democratic 
nations must undertake when responding to low-intensity aggression if their 
actions are to foster broad international understanding: 

(1) Before any defensive response is undertaken to an ongoing pattern of low-in- 
tensity attack, the United States should present evidence of the aggressive attack 
before the Security Council of the United Nations and notify the Council that if 
the aggression continues, the United States will take appropriate action in response 
under Article 51 of the Charter. (Note that, consistent with protecting intelligence 
sources and methods, notification need not include all of the evidence of the 
attack.) This notification requirement is a legal obligation for a defensive response, 
and if it is neglected, the United States action will be politically harmed. Whether 
the action to be undertaken in response to aggression is overt or covert, it is not 
necessary to identify precisely what it will be or when it will take place. The 
occasion of Security Council notification should be used as a critical opportunity 
for generating public awareness of the nature of the continuing aggressive attack. 
If necessary, the evidence should be repeatedly presented before the Security 
Council. 

(2) In cases of defensive response against low-intensity attack, it is particularly 
important to indicate that the response is in defense against an ongoing and sustained 
pattern of attack, not merely a response to what may have been the latest bombing 
or other terrorist attack in a series. 

(3) It is very important that United States spokesmen clearly and consistently base 
responsive defensive actions in Article 51 of the United Nations Charter. Such an 
action should not be called a reprisal or anything other than a defensive response 
against ongoing armed aggression. 

(4) Defensive actions should be carefully planned to be consistent with the laws 
of war and should be proportional, while employing adequate levels of force to 
quickly prevail and deter for the future. Too little force does not deter and simply 
discredits the defensive response. The Gulf defensive effort generally provides a 
good example of an appropriate response. Similarly, it is essential that governmental 
spokesmen fully respond in detail to the usual disinformation efforts suggesting 
that such responses are non-proportional or illegal. The defensive effort, if it is to 
effectively prevail, must also win the associated political struggle. 



Moore 39 
V. Conclusion 

Secret aggression in the low- and mid-intensity conflict spectrum is one of 
the most serious world order threats of our age. Because of a drumbeat of 
propaganda concerning political objectives of the attack, coupled with obscure 
public perceptions of the origins of the attack, and a pervasive mirror-imaging 
of aggression simply as a "dispute" requiring third-party resolution, the interna- 
tional system tends to ignore the aggressive attack while condemning the more 
visible defensive response. If, however, we are to discourage the low-intensity 
portion of the aggressive attack spectrum, then, as with overt aggression, it is 
essential that we understand the need for effective defense and deterrence against 
such attack. The international legal system can contribute to such deterrence in 
a substantial manner if, but only if, we make a strong distinction between the 
treatment of aggression and defense, whether overt or covert. That is, we must 
strengthen the international legal system to strongly condemn aggressive attack, 
whether such an attack is in the form of low-intensity terrorism, or hostage- 
taking, or armies on the march. Just as importantly, the system must be 
strengthened to strongly support the defensive response against such aggression, 
whether such a response is overt or covert. 

Notes 

*John Norton Moore is the Walter L. Brown Professor of Law and Director of the Center for National Security 
Law at the University of Virginia School of Law. 

1 . A recent example of the tendency of some international legal scholars to ascribe war to the unavailability 
of dispute settlement machinery is contained in an article on the World Court by Professor Robert E. Lutz II. 
Professor Lutz writes, in the immediate aftermath of the Gulf conflict, with the best of intentions and within 
the prevailing myth system of our profession: 

Despite the commitment of nations to "settle their disputes by peaceful means," the drastic and 
ultimate dispute-settlement method of war has been used once again to resolve an international 
dispute — this time in the Middle East. One might hope that the hell of war, and the destruction it 
inflicts upon innocent populations and humanity generally, would have eliminated it as a viable 
instrument for resolving international disputes at this advanced stage of world history. Yet even with 
mankind's vast experience with war's horrors and waste, the world community has been unable to 
channel all international disputes into peaceful resolution processes. Because of the concept of 
sovereignty and the role that States play in the international system, States may give or withhold their 
consent to the jurisdiction of third-party dispute-settlement regimes or the submission of their interstate 
conflicts to the variety of intermediary dispute-setdement procedures. Thus, when a State resists in 
giving its consent, a dispute may either with time go away, fester and possibly escalate, or become the 
subject and justification for the use of coercive measures by the complainant-State, which, in many 
cases, would be considered violations of international law. 

Lutz, Perspectives on the World Court, the United States, and International Dispute Resolution in a Changing World, 
Int'l Law. 657, 675-76 (Fall 1991) (footnotes omitted). Apparently Professor Lutz is unaware that Kuwait had 
offered to submit any border issues to the International Court of Justice. Moreover, many other third party 
dispute settlement techniques were available to Iraq, including conciliation or mediation by regional Arab 
leaders. The Gulf conflict did not arise from an absence of available third party dispute settlement machinery. 
Nor did it even arise from any reasonably perceived "dispute." 



40 Legal & Moral Constraints on Low-Intensity Conflict 

2. See RUMMEL, LETHAL POLITICS: SOVIET GENOCIDES AND MASS MURDERS SINCE 1917 (1990). 

3. House Republican Research Committee Task Force on Terrorism & Unconventional Warfare, Libyan 
Terrorism 5 flan. 7, 1992). 

4. Henkin, Use of Force: Law and U.S. Policy, in RIGHT V. MIGHT: INTERNATIONAL LAW AND THE 
USE OF FORCE 37, 50 (1989). 

5. Id. at 54. 

6. Id. at 62. 

7. Falk, The Cambodian Operation and International Law, in /// THE VIETNAM WAR AND INTERNA- 
TIONAL LAW: THE WIDENING CONTEXT 33, 50 (Falk ed. 1972). Compare this view with Moore, 
International Law and the United States Role in Vietnam: A Reply to Professor Falk, reprinted in MOORE, LAW AND 
THE INDO-CHINA WAR 403-457 (1972). 

8. See Paust, The Seizure and Recovery of the Mayaguez, 83 Yale L. J. 774, 774-81, 795-803 (1976). 

9. BOYLE, DEFENDING CIVIL RESISTANCE UNDER INTERNATIONAL LAW 335 (1987). 

10. Id. at 332. 

11. Chayes, The Use of Force in the Persian Gulf (paper prepared for the U.S.-Soviet Conference on the 
Non-Use of Force, October 4-6, 1990, copy in possession of author). 

12. Rubin, Iraq, Kuwait, the United Nations and World Order, Int'l Practioner's Notebook 18 (Feb. 1991). 

13. Schachter, United Nations Law in the Gulf Conflict, 85 Am. J. Int'l L. 452 (1991). 

14. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 Am. 
J. Int'l L. 516 (1991). Compare this view with the recent unpublished paper by Professor Inis Claude entitled 
Collective Security after the Gulf War, prepared for the Army War College Conference April 1992, which 
concludes that great power pressure may even be a requirement for an effective United Nations stand against 
aggression. 

15. See also Yoxall, Iraq and Article 51: A Correct Use of Limited Authority, The Int'l Law. 967, 985 (1991). 
"While Article 51 might have supported an offensive counterattack on Iraq in early August, by mid-October 
that option no longer existed." Id. 

16. See Ramsey Clark's Crusade, Legal Times (Sept. 2,1991) at 3. 

17. "Benn blames war on U.S. bid to control Iraqi oil," The Press Association Limited, Press Association 
Newsfile, December 1, 1991. 

18. Anti-War Tribunal Blasts Bush, U.S. Military for Gulf War, Reuters News Service, May 11, 1991. 

19. Arkin, Durrant, & Cherni, On Impact: Modem Warfare and the Environment — A Case Study of the Gulf 
War (May 1991). (A Greenpeace Study). 

20. Livingston, Straight Talk About National Principles, Sea Power 21-22 (October 1991). 

21. See the authorities collected in MOORE, THE SECRET WAR IN CENTRAL AMERICA (1986) and 
the dissenting opinion ofjudge Schwebel in the Military and Paramilitary Activities Case (Nicar. v. U.S.), 1986 
I.C.J. 14, 259, 334, para. 167. See also, for one of the best general treatments of this subject, MCDOUGAL & 
FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961) and Erickson, Legitimate Use of Military 
Force Against State- Sponsored International Terrorism, Air Univ. Press, July 1989. 

22. See Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE,June 1990, 
U.S. Commission on Security and Cooperation in Europe, Washington, D.C. 

23. For the intentional breadth of the concept of "rule of law" here, see Moore, The Rule of Law: An 
Overview, presented to the Seminar on the Rule of Law, Moscow and Leningrad, USSR, March 19-23, 1990. 
The author presented this paper while serving as Co-Chairman, with the U.S. Deputy Attorney General, of 
the U.S. Delegation to the Moscow — Leningrad Seminar on the Rule of Law. 

The "rule of law," as intended here, explicitly does not mean observing the legal niceties on the way to 
the Gulag. Rather, the principal fundaments of the rule of law are: 

• government of the people, by the people, and for the people; [for the origin of this phrasing, see 
Abraham Lincoln, Gettysburg Address (Nov. 19,1863.), See also the French Constitution] 

• separation of powers and checks and balances; 

• representative democracy and procedural and substantive limits on governmental action against 
the individual (the protection of human freedom and dignity); 

• limited government and federalism; and review by an independent judiciary as a central 
mechanism for constitutional enforcement. Moore, The Rule of Law: An Overview, supra. 

For an example of rule of law engagement incorporated into contemporary U.S. foreign policy, see National 
Security Strategy of the United States, August 1991, at 14, col. 1 (U.S. Government Printing Office, 1991). 



Moore 41 

Recent history has shown how much ideas count. The Cold War was, in its decisive aspect, a war 
of ideas. But ideas count only when knowledge spreads. In today's evolving political environment, and 
in the face of the global explosion of information, we must make clear to our friends and potential 
adversaries what we stand for. 

The need for international understanding among different peoples, cultures, religions and forms of 
government will only grow. In a world without the clear-cut East- West divisions of the past, the flow 
of ideas and information will take on larger significance as once-isolated countries seek their way toward 
the international mainstream. Indeed, information access has already achieved global proportions. A 
truly global community is being formed, vindicating our democratic values. 

Through broadcasts, academic and cultural exchanges, press briefings, publications, speakers and 
conferences, we engage those abroad in a dialogue about who and what we are, to inform foreign 
audiences about our policies, democratic traditions, pluralistic society and rich academic and cultural 
diversity. We will increase our efforts to clarify what America has to contribute to the solution of global 
problems, and to drive home democracy's place in this process. Id. 



Chapter 

State Sovereignty, International Law, 

and the Use of Force in Countering 

Low-Intensity Aggression in the Modem World 



by 
Robert F. Turner* 



Introduction 

The end of the Cold War and the success of Operation Desert Storm have 
substantially reduced the likelihood of United States forces having to 
engage in hostilities at the upper end of the conflict spectrum. World War III 
and an accompanying nuclear holocaust are no longer perceived as serious threats 
to our security. If the coming years bring an end to Leninist rule in China, Cuba, 
Vietnam and North Korea, much of the impetus behind modern day low-inten- 
sity conflict may also be behind us. 

Unfortunately, however, there remain a variety of political and para-military 
organizations around the world who have either severed their ties to the old 
Leninist establishment or who developed independently of that tradition. In 
particular, the growing synergism between terrorist organizations and drug cartels 
poses a serious threat to the peace of the international community. There are 
other low-intensity threats as well. 

This paper will provide an overview of the modern law of sovereignty, and 
discuss its implications as a constraint on U.S. Government low-intensity conflict 
doctrine, and raise a few related issues which might provoke discussion and even 
encourage some new thinking about how we promote peace in a changing 
international environment. 

The Importance of Reciprocity and 
Good Faith in International Law 

Before turning to an examination of the historic development of the doctrine 
of so vereignty and its modern content, a few words of caution are in order. As 
we assess our strategic options, we must resist the temptation to destroy our values 
in order to save them. We need to remain cognizant that any new principles of 



44 Legal & Moral Constraints on Low-Intensity Conflict 

international law we decide to embrace must apply universally across the 
spectrum of nations in the world community. Before the United States claims a 
right to enter foreign territory to deal firmly with terrorists or drug lords, we 
need to consider the consequences of making lawful similar conduct by the 
governments of Saddam Hussein, Moammar Qadhafi, and other radical regimes 
who may have a different concept of who is a "terrorist." Above all, while there 
may well be instances in which the United States concludes it must depart from 
the rules of international law in defense of its national security, we should keep 
in mind the tremendous benefits we receive from the existence of a stable world 
legal order and make every reasonable effort to preserve and nurture this maturing 
instrument of peace and justice. 

Maintaining the Jeffersonian 
Tradition of Honor and Justice 

As Sir Thomas More acknowledged, the temptation to "strike down all the 
laws of England" to get at "the Devil" is a great one; but we must resist that 
temptation and recognize that living in a world governed by an effective rule of 
law is in our long-term national interest. 

To be sure, Thomas Jefferson acknowledged that there may be extreme 
circumstances in which the rule of law must give way to the survival of the nation. 
In an 1810 letter to J.B. Colvin, Jefferson wrote: 

A strict observance of the written law is doubtless one of the high duties of a good 
citizen, but is not the highest. The laws of necessity, of self-preservation, of saving 
our country when in danger, are of higher obligation. To lose our country by a 
scrupulous adherence to written law, would be to lose the law itself, with life, 
liberty, property and all those who are enjoying them with us; thus absurdly 
sacrificing the end to the means. 

Professor W.E. Hall went even further, appearing to argue that international 
law permitted virtually any measure that was necessary for a State's survival. But 
such situations are extremely rare, and when we are tempted to twist the rules a 
little to promote what we perceive to be the interests of our nation, we need to 
carefully comprehend and weigh the costs associated with being regarded as a 
lawbreaker by other nations in the world community. To this, as well, must be 
added the risks of inadvertently modifying the accepted rules of international 
behavior in ways that might benefit radical regimes and other potential aggressors. 

A valuable part of the diverse legacy left us by Jefferson was a well thought 
out philosophy of foreign relations. His foreign policy was premised upon two 
complementary ideas: (1) peace through justice, and (2) peace through strength. 
We would do well to emulate his approach to world affairs. 



Turner 45 

Unlike many of his contemporaries and others even today, Jefferson recog- 
nized that abiding by the rule of law was in the long-term self-interest of 
sovereign states. In a letter to his friend Lafayette, written on 2 April 1790, 
Jefferson wrote: 

I think . . . that nations are to be governed with regard to their own interests, but 
I am convinced that it is their interest, in the long run, to be grateful, faithful to 
their engagements, even in the worst of circumstances, and honorable and 
generous always. 

Similarly, in an 18 April 1793 "Opinion on whether the US had a right to 
renounce treaties with France following the French Revolution," Secretary of 
State Jefferson argued: 

Compacts . . . between nation and nation, are obligatory on them by the same 
moral law which obliges individuals to observe their compacts ... [I] t is true that 
nations are to be judges for themselves; since no one nation has a right to sit in 
judgment over another, but the tribunal of our conscience remains, and that also 
of the opinion of the world. These will review the sentence we pass in our own 
case, and as we respect these, we must see that in judging ourselves we have 
honestly done the part of impartial and rigorous judges. 

This emphasis upon morally upright behavior was reflected in much of 
Jefferson's writing. In a letter to James Madison — who served as Jefferson's 
Secretary of State and succeeded him as President — Jefferson wrote on 19 April 
1809: "[I]t has a great effect on the opinion of our people and the world to have 
the moral right on our side." 

In a 28 July 1791 letter to William Short, who had been his private secretary 
in Paris and was then American charge" d'affaires in Paris, Secretary of State Jefferson 
said: "If there be one principle more deeply rooted than any other in the mind 
of every American, it is, that we should have nothing to do with conquest." As 
we seek legal solutions to the complex challenges we face in the low-intensity 
conflict environment, it is imperative that we not lose sight of this "peace through 
justice" compass. 

Jefferson's "peace through justice" theory was complemented by a well- 
reasoned belief in the need for military strength. In a 23 August 1785 letter to 
John Jay — who served as Secretary of Foreign Affairs in the Continental 
Congress — Jefferson reasoned: 

Justice ... on our part, will save us from those wars which would have been 
produced by a contrary disposition. But how can we prevent those produced 
by the wrongs of other nations? By putting ourselves in a condition to punish 
them. 



46 Legal & Moral Constraints on Low-Intensity Conflict 

Weakness provokes insult and injury, while a condition to punish, often prevents 
them. This reasoning leads to the necessity of some naval force; that being the only 
weapon by which we can reach an enemy. I think it to our interest to punish the 
first insult; because an insult unpunished is the parent of many others. We are not, 
at this moment, in a condition to do it, but we should put ourselves into it, as soon 
as possible. 

How far can the United States go in its efforts to promote justice in the struggle 
against terrorism, narcotics, and other important threats without unacceptably 
infringing upon the sovereign rights of other States? As we ponder this important 
question, we ought to bear in mind that the underlying principle of "non-inter- 
vention" currently embodied in Article 2(4) of the U.N. Charter was a key 
element in early U.S. foreign policy. On October 24, 1823 — about a month 
before the promulgation of the Monroe Doctrine — Jefferson wrote a letter to 
President Monroe praising the proposed remarks: 

Our first and fundamental maxim should be, never to entangle ourselves in the 
broils of Europe. Our second, never to suffer Europe to intermeddle with 
cis- Atlantic affairs. America, North and South, has a set of interests distinct from 
those of Europe, and peculiarly her own. She should therefore have a system of 
her own, separate and apart from that of Europe. While the last is laboring to 
become the domicile of despotism, our endeavors should surely be, to make our 
hemisphere that of freedom. . . . Nor is the occasion to be slighted, which this proposition 
offers, of declaring our protest against the atrocious uiolations of the rights of nations, by the 
interference of any one in the internal affairs of another .... 

This idea of prohibiting "the interference of any one [State] in the internal 
affairs of another" was a radical concept when proposed by Jefferson, but it was 
a sound principle and is now embodied in both customary and conventional 
international law. On occasion, it may act as an impediment to otherwise 
attractive measures to address problems of low-intensity aggression. As we seek 
solutions to these serious threats to our national security, we ought to make every 
effort to leave intact the fundamental prohibition against interfering in the 
internal affairs of other States. 



The Dual Significance of Reciprocity 

Policymakers need to keep in mind the important legal concept of reciprocity. 
Two aspects of this concept are relevant to the topic before us. The first is the 
reality that any "loopholes" in existing law we find to exploit and any new 
principles of customary law we help to forge will be available for the world's 
radical regimes and other potential adversaries to use in their relations with us. 
The second draws upon Jefferson's observation that law is a "means" and not the 
ultimate "end" of policy, and we should keep in mind that the United States 



Turner 47 

entered into the legal regime established by the U.N. Charter with a clear 
warning that we expected other States to abide by the same set of rules. If our 
fundamental national interests are jeopardized because we choose to compete by 
the "rules" against adversaries who accept no such constraints, the time may 
come when we need to reassess our own adherence to the "rule of law" with 
respect to those particular outlaw States. 

The first point is an important one. The current regime of international law 
is premised upon the "sovereign equality" of all States, irrespective of size or 
power. While in fact there are some exceptions to this fundamental doctrine, 
as a general proposition any legal right claimed by the United States must also 
be given to Iraq, Iran, Libya, and every other State in the world — perhaps in a 
somewhat different or even broader scope than initially envisioned by the United 
States. 

There is an understandable temptation to resort to "long arm" statutes claiming 
extraterritorial jurisdiction to permit serious punishment of foreign drug kingpins 
or terrorists, and in some situations this may be warranted. In a related vein, like 
many other States, the United States accepts what we call the Ker Frisbie Doctrine, 
which permits courts to try properly accused individuals irrespective of the fact 
that the defendant has been brought before the court by kidnapping or other 
wrongful use of force from another jurisdiction. Thanks to these rules, Mexican 
druglord Rene Martin Verdugo-Urquidez has been convicted in a California 
court for the torture and murder of U.S. Drug Enforcement Agency agent 
Enrique Camarena. Most Americans undoubtedly approve of tliis outcome, 
and the fact that Verdugo was apparently seized unlawfully in Mexico by agents 
of the U.S. government may seem irrelevant. 

But ponder for a moment how the United States would likely view an effort 
by Iraq to carry out a "long arm" criminal statute which pronounced a penalty 
of death for any individual who took part in the sinful business of producing or 
marketing alcoholic beverages if such beverages were smuggled into Iraq in 
violation of that nation's municipal law. Certainly we may feel that narcotics are 
a greater threat than alcohol, but subjectively Iraq might reasonably group both 
drugs together. (After all, many of the early treaties designed to regulate opium 
smuggling also prohibited commerce in illegal alcoholic beverages). And while 
the United States may well have sufficient procedural guarantees to safeguard the 
rights of innocent defendants, international law does not require that Iraq adopt 
an exclusionary rule or even a trial by jury before a capital sentence may be 
executed. Unilateral efforts to deal with international criminal conduct have 
inherent risks. The wise policymaker needs to weigh the potential consequences 
before embracing creative new unilateral "simple solutions." While getting 
agreement by other States may be difficult, there are clear advantages to taking 
a multilateral approach when that is possible. Indeed, there are benefits to exhausting 



48 Legal & Moral Constraints on Low-Intensity Conflict 

multilateral options even when it is clear effective action at that level will be 
blocked. 

With respect to the second point, I want to make it clear that I am not urging 
the United States to become a lawbreaker in order to deal with current 
low-intensity conflict problems. We receive tremendous benefits as a nation from 
living in a world governed by the rule of law, and we ought to go to great lengths 
to uphold the principles which we embraced in San Francisco in 1945. However, 
if the world community proves unwilling or unable to give teeth to the 
Charter — particularly in respect to its prohibitions against armed aggression — the 
time may come when we need to adapt to the rules of our adversaries. Indeed, 
this was the expectation of Senator Arthur Vandenberg, who co-chaired the U.S. 
Delegation to the 1945 San Francisco Conference and later helped persuade the 
Senate to give its advice and consent to ratification of the U.N. Charter. In 
presenting the treaty to the Senate, Vandenberg said: 

I want a new dignity and a new authority for international law. I think American 
self-interest requires it. But . . . this also requires whole-hearted reciprocity. In 
honest candor I think we should tell other nations that this glorious thing we 
contemplate is not and cannot be one-sided. I think we must say again that 
un-shared idealism is a menace which we could not undertake to underwrite in 
the postwar world. 

It would be immoral for the law-abiding and peace-loving members of the 
world community to sit idly by out of respect for the rule of law while 
lawbreaking States carry out repeated acts of unanswered aggression. We hope 
that the international peacekeeping system will be strong enough to respond 
effectively to aggression; but if it fails, at some point it may become necessary for 
us to tell flagrant aggressors that we have no choice but to play by their rules. 
This, I believe, is essentially what the United States did during the Reagan 
Administration in dealing with Soviet and Cuban intervention in Nicaragua, the 
Soviet invasion of Afghanistan, and other elements of the so-called "Reagan 
Doctrine." International law is at present still an imperfect means of maintaining 
international peace, and by informing a particularly notorious lawbreaker State 
that we have no choice but to play by the rules of behavior it has selected, we 
may ultimately promote greater respect for the rule of law by providing aggressor 
States with an incentive to obey the established rules of international behavior. 

Benefits Of Multilateral Approaches 

International law does not favor the use of armed force by individual States, 
and even when self-defense provides a full legal justification for military measures 
there is an understandable preference for multinational solutions. Obviously, if 
the United States or a key ally were to be attacked by a major military force, few 



Turner 49 

would argue with our taking defensive measures as a means of protecting our 
interests. But even in that situation, it would be in our interest to raise the matter 
at once in appropriate international organizations (e.g., U.N. Security Council 
orOAS). 

First of all, this provides evidence of good faith on the part of the United States 
and signals our preference for multilateral responses to armed aggression. Second- 
ly — particularly if the world community understands that the alternative to 
collective action will be unilateral U.S. action — there is always a chance that we 
will gain the support of the world community and they will share in the costs of 
deterring or defeating the aggression. Each time the U.S. bypasses the machinery 
of international law it helps to undermine that structure, and in the long-run it 
is clearly in the United States' interest to have an effective world collective 
security mechanism. 

There are obvious advantages of taking a multilateral approach. Consider, for 
a moment, the case of Libya and the terrorist attack on Pan Am Flight 103. If 
the powerful United States sent a naval armada to the Gulf of Sidra to pressure 
Libya into handing over the accused terrorists, many nations would view this as 
"power politics" as usual — a superpower bully imposing its will on a relatively 
weak Third World State. By having the U.N. Security Council take the lead, 
the case becomes not "United States v. Libya" but "The World Community v. 
Libya," and a charge by the Security Council that Libya is guilty of State-spon- 
sored terrorism is^ar more persuasive to most neutral observers than would be a 
unilateral U.S. charge. Even if the United States in the end has to act unilaterally, 
the fact that the Security Council tried without success to compel Libya to fulfill 
its international responsibilities will likely strengthen the U.S. hand if force 
ultimately is necessary. 

When the United States is forced to go it alone — for example, in situations 
in which another permanent member exercises its veto in the Security Coun- 
cil — it is important that we have the maximum possible support from our own 
people and from the people and governments of the world. The knowledge that 
the U.S. sought to utilize the established international machinery before resorting 
to unilateral force should strengthen its hand in the struggle for public support. 

If We Must Break the Law — Mitigating 
Systemic Damage 

As Secretary of State Jefferson noted, law is a "means" and not the ultimate 
"end" of society. It is a tremendously important means, and the United States 
should do nothing to undermine the continued development of international 
law if we can avoid it. But — particularly given some of the current shortcomings 
or weaknesses of the law — there may come a time when we must act contrary 
to our treaty or other international law obligations. In that event, it is important 



50 Legal & Moral Constraints on Low-Intensity Conflict 

that we do as little long-term damage to the legal system as possible. Breaches of 
the law should not be undertaken lighdy — they should be limited to the least 
possible violation of the law that is consistent with protecting the vital interests 
of our country. We should not twist the rules to pretend to justify unlawful 
conduct. 

If the United States does at some point find it necessary to step outside the 
current regime of international law to deal effectively with a particularly heinous 
lawbreaker, it is imperative that we do everything reasonably possible to explain 
our actions and reaffirm our strong commitment to the principles of international 
law. We should at the outset acknowledge openly that "special circumstances" 
have required us to depart from accepted rules of behavior to safeguard fun- 
damental national security interests that have been endangered by the flagrantly 
unlawful conduct of another State. Such candor is greatly preferable to the 
pretense that our actions can be somehow reconciled with established norms of 
behavior among States, which could pave the way for an undesirable change in 
the rules of international conduct. The U.S. intervention in Panama in December 
1989 may provide an example of how not to handle the "special case" situation. 
This issue will be discussed below. 

Considerations of Equity 

Related to this kind of extraordinary situation is the question ofequity. Among 
the three primary (and co-equal) sources of international law recognized by 
Article 38 of the Statute of the International Court of Justice are "the general 
principles of law recognized by civilized nations," and both Judges on the Court 
and leading scholars have recognized that — in the words of the late Wolfgang 

Friedman — "equity is part and parcel of any modern system of administration of 

^ "17 
justice. 

The principles of equity may provide some legal basis for the United States 
to deal with radical regimes or aggressor nations outside the normal rules of 
international behavior. When Japan invaded Manchuria in 1931, Secretary of 
State Henry Stimson announced his "Stimson Doctrine" which was subsequendy 
embraced by the League of Nations and a large number of legal scholars. In 
essence, it provided that the wrongful territorial gains of illegal aggression would 
not be recognized by the law-abiding world. I believe that the so-called "Reagan 
Doctrine" was, in effect, a corollary to the Stimson Doctrine, in that the United 
States refused to give regimes which had recendy come to power in flagrant 
violation of the use of force provisions of the Charter, or which were engaged 
in flagrant violations of those provisions in an effort to overthrow other 
governments, the normal protections provided by international law to law-abid- 
ing States. 



Turner 51 

As I will discuss below, I believe the April 1986 air attack on terrorist targets 
in Libya was consistent with the doctrine of self-defense recognized in Article 
51 of the U.N. Charter. But, even were it an arguable breach of the law, a case 
can be made that Libya should not be allowed by the World Court to raise a 
claim against defensive measures of self-help by other States so long as the 
important principles of necessity and proportionality have been satisfied. 

At the root of this suggestion is the idea that a State which refuses to constrain 

its own conduct to the most fundamental rules of international law should not 

be permitted to further weaken its victims by persuading the world community 

to punish a defensive violation of the same rules. Why should the world 

community accept such an approach? First of all, it is fair and equitable. But 

almost of equal importance, such a rule would also strengthen deterrence and 

provide additional incentives for radical regimes to comply with the law of the 

Charter. It is well documented that the government of Libya significantly 

curtailed its support of international terrorism in the months following the 1986 

1 a 
American attack, and it is difficult to argue that the attack did not ultimately 

contribute to strengthening compliance with the rule of law. As already noted, 

Senator Vandenberg emphasized in 1945 that U.S. acceptance of the law of the 

Charter was premised upon reciprocal compliance by our adversaries; and if 

other means of dealing with terrorism and other forms of low-intensity aggression 

prove inadequate and require defensive measures of questionable legality, it might 

be useful to explore equitable defenses. 

The doctrine of "unclean hands" denies equitable relief to a petitioner whose 
own conduct broke the rules or was unfair. Until more effective means can be 
developed to compel radical regimes to comply with their international legal 
obligations not to engage in terrorism or otherwise use aggressive force, it would 
seem to be a reasonable request to ask that international law not direct its 
immunity system against a peace-loving State which simply seeks to defend itself 
(or other victims) against such unlawful aggression. In reality, I believe that most 
necessary and proportional "defensive** responses to international terrorism or 
other forms of low-intensity armed aggression will be permissible under the 
theory of self-defense, but not all lawyers will agree. It therefore might be useful 
to complement a claim of self-defense with the argument that, even if the 
defensive response exceeded the limits envisioned by the authors of the Charter, 
the initial aggressor — who has chosen not to abide by its clear international legal 
obligations — ought not be able to further weaken the victim(s) of its aggression 
by using legal measures against their defensive response. The most basic principles 
of equity recognize the unfairness of such an approach, and the United States 
should reaffirm the idea that equity is a part of international law. 

There is a clear problem with this approach. Fundamental principles of equity 
might well preclude Libya from bringing a claim against the United States for a 
"reciprocal breach** of the use of force provisions of the Charter. However, 



52 Legal & Moral Constraints on Low-Intensity Conflict 

those provisions are clearly peremptory norms of international law (jus cogens). 
As such, a violation is an offense against not only the target of the use of force 
but every other State as well. Since there is universal jurisdiction over violations 
of Article 2(4), even if an equity defense could prevent Libya from prevailing in 
a claim it would not necessarily guard against a claim by another State that had 
not violated the Charter. Nevertheless, in terms of public perceptions of fairness, 
the equitable argument is, in my view, a strong one; and to the extent that 
arguments of self-defense are questionable it would be useful to accompany them 
with an appeal to equity. 

Importance of Public and Congressional 
Understanding and Support 

Before turning to the issue of sovereignty, one other comment may be in 
order. No major foreign policy initiatives are likely to succeed in a democracy 
unless understood and supported by the people. This same principle suggests the 
utility — irrespective of legal requirements — of keeping Congress informed 
about such initiatives. Further, we must keep in mind that support in other 
countries — by governments and the public alike — for U.S. foreign policy 
initiatives is valuable and fully justifies the investment we should make in public 
information efforts. 

Mr. Jefferson was certainly right when he spoke of the importance of having 
"the moral right on our side'* as we seek to earn the support of our own people 
and those of other countries. Often our policies are clearly just and little 
explanation is necessary, but there are frequent situations in which these policies 
only make sense to people familiar with the factual background. This is especially 
true when force is used in defense against a low-intensity form of aggression, as 
often the world community and even our own people will not be aware of an 
initial covert campaign of aggression. 

For example, few Americans knew the details of Nicaraguan efforts to 
overthrow the governments of El Salvador and other neighboring States, nor 
was Libyan involvement in State-sponsored terrorism fully appreciated at the 
time of the April 1986 U.S. military attack. As a result, a large number of patriotic 
Americans were misled into believing that their government was engaged in 
unprovoked and illegal aggression in both instances. Even if this opposition does 
not block the success of the policies which inspired it, public opposition to 
government programs is cumulative and can undermine subsequent unrelated 
programs. 

This means that psychological/political warfare is critically important to any 
sound low-intensity conflict strategy, and those charged with such responsibilities 
must either be educated in the law of nations pertaining to the use of armed force 
or have ready access to individuals who are highly knowledgeable in this area. 



Turner 53 

There is already a considerable amount of distrust of the government within the 
academic international law community, and for the past two decades it has been 
common for legal scholars to criticize governmental decisions to use force. Sadly, 
even when the government is clearly justified in its decision to resort to force, if 
its legal justification for the action is misstated, the critics will not hesitate to 
attack the justification. Therefore, the task of setting forth the moral and legal 
justification for any potentially controversial use of force should be entrusted to 
individuals with sound scholarly training and an appreciation of the fact that 
credibility depends upon complete accuracy and honesty in setting forth the case. 

The Concept of Sovereignty 

The concept of sovereignty carries with it the idea of supremacy or inde- 
pendence from external control. In an absolute form, sovereignty would clearly 
preclude the existence of a meaningful system of international law. It affects not 
only the permissibility of one State using force against another, but also the right 
of victims of armed aggression to act within the boundaries of other States in the 
interest of peace. To understand the modern concept of sovereignty, it is useful 
to review briefly the intellectual origins of the concept and its development over 
the years. 

Early Views Of Sovereignty 

It is speculated that William of Ockham (1270-1347) may have been the first 
to put forth the concept of "popular sovereignty," a view held almost contem- 
poraneously by Marsilius of Padua, who argued that the people were the source 
of all power within a society. As early as the end of the Middle Ages, the word 
souverain was used in France to indicate a political or other authority which was 
"supreme" in the sense that it had no other authority above itself. 

The first modern attempt to define "sovereignty" is usually attributed to Jean 
Bodin (1530-1597). In his Les Six Livres de la RSpublique, Bodin views sovereigny 
as "the absolute and perpetual power within a State," or "that supreme 
authority within a State whence all laws proceed." 4 Bodin viewed an absolute 
monarch as the source of sovereign power, and concluded that such an authority 
was subject to "no human restraints." The Sovereign was, however, governed 
by the Commandments of God and duties of Natural Law to keep faith with his 
subjects. Bodin argued that sovereignty was an attribute of the king in a 
monarchy and of the people in a democracy, and it could not be regulated by 
positive law. The reason a king was required to abide by the terms of treaties 
(pacta sunt servanda) arose not from positive law but because the Law of Nature 
commands that contracts are binding. 



54 Legal & Moral Constraints on Low-Intensity Conflict 

The concept of absolute sovereignty received strong support with the publi- 
cation in 1625 of Hugo Grotius' classic study, Dejure Belli et Pads, in which the 
father of modern international law contended that the sovereignty of each State 
was absolute, including complete control of its subjects and complete inde- 
pendence from external restraint. When the Stuarts replaced the Tudors in 
England at the start of the seventeenth century, they brought with them the claim 
of Divine Right of Kings. By this theory, parliaments existed only as a matter of 
royal grace; and while the king did have a duty to be just in dealing with his 
subjects, this duty was owed to God and not to the subjects themselves. 

The Revolution of 1688 affirmed the theory that sovereign authority grew 
from the assent of the people, a view championed by John Locke in his Two 
Treatises on Civil Government. Rejecting the absolute sovereignty of Bodin, Locke 
argued that the sovereign was bound by rules of Natural Law and could be 
rightfully removed from power by the people if he/she violated these prin- 

• i 34 
ciples. 

A contrary view was championed by Hobbes, whose Leviathan argued that all 
rights are derived from the sovereign, who owes no duty to his subjects. 
According to Hobbes, there can be no legal limitations on sovereign power, and 
sovereignty must be vested in a single man and can not be divided. John Austin 
and Jeremy Bentham were largely influenced by Hobbes on the issue of 
sovereignty. Austin argued that a society (or State) was composed of a 
"sovereign" and his "subjects." Because Austin, like nearly all authors of the 
sixteenth and seventeenth centuries, believed sovereignty could not be divided, 
he held that in a republican form of government it must reside in the legislative 
branch. The executive must be subordinate to the legislative, and charged with 
implementing the will of the latter. 

The establishment of the American system of government, with three, 
co-equal, independent branches of the national government and additional 
powers reserved to the States (federalism) caused problems for some political 
theorists. Some, including many followers of John Austin, reasoned that the 
Constitution was the source of political power, and that the people were the 
source of the Constitution. Thus, in the United States, sovereign power resided 
with the people. Others concluded that, contrary to prevailing thinking, 
sovereignty could be divided. French jurist Adehar Esmein added another voice 
for the theory that "the people" were the ultimate source of sovereign power. 

Professor Charles G. Fenwick writes: "In the technical usage of the past a 
sovereign State was one which exercised undivided authority over all persons 
and property within its borders and was independent of direct control by any 
other power." He notes that historically there were a number of "marks of 
sovereignty," such as the right to send and receive diplomatic agents, the right 
to be immune from foreign judicial process, and the right to make war. A 



Turner 55 

shrinking world and a desire for peace worked gradually to diminish the scope 
of this great power. 

Early Restrictions on Sovereignty 

Gierke argued that, even in the Middle Ages, sovereignty was not unlimited. 
Kings and parliaments alike were constrained by rules of Natural Law (jus naturae), 
the law of God (jus divinum), and "the common practice of all nations" (jus 
commune gentium). R.A. Eastwood and G.W. Keeton writing in The Austinian 
Theories of Law and Sovereignty, conclude: "It will therefore be evident that the 
existence of the idea of Natural Law imposed an important limitation upon 
sovereign power. Even Coke, so late as the seventeenth century, held that an 
Act of Parliament contrary to the principles of Natural Law would be void, but 
the idea was waning even then." 

An important early restriction on sovereignty came from religion. Augustine 
and Thomas Aquinas believed in "the absolute supremacy of the Papacy." 
According to the "doctrine of two swords", God has given the Pope two 
swords — the spiritual sword for the Pope to wield himself, and the temporal 
sword for the Pope to entrust to another (the Emperor). By this theory, the 
Emperor was both inferior to the Pope and constrained in his exercise of 
"sovereign" authority to abide by the law of God. 

The desire for peace led to still further refinements in the definition of 
sovereignty. Hymen Cohen, of the University of Chicago, wrote in 1937: 

In the international field with its contending autonomous groups, with its newly 
emergent States, the claims to exclusive possession of absolute, unitary power were 
hardly reconcilable with the desire and the need for peace. To further peace and 
cooperation among the rulers and nations which had arisen from the remains of 
the economically antiquated feudal system, the concept of sovereignty changed 
from a single unitary supreme power. ... In this manner, owing to the exigencies 
of an international situation in which the possession of sovereignty was the index 
to internal governmental supremacy, sovereignty externally was limited in mean- 
ing to the recognition that the government was supreme domestically and that it 
could enforce what it would on its own domain. Externally, it claimed no 
supremacy; it claimed only a freedom from external control — independence. It 
claimed, in other words, the right to make such obligations for itself and its nation 
as it pleased, of its own free will. 

Professor Oppenheim noted that the development of international law raised 
new questions about the traditional theories of sovereignty: 

The question which is now confronting the science of law and politics is how far 
sovereignty as it presents itself from the point of view of the internal law of the 
State, namely, as the highest, underived power and as the exclusive competence 
to determine its jurisdictional limits, is compatible with the normal functioning 



56 Legal & Moral Constraints on Low-Intensity Conflict 

and development of International Law and organisation. The very notion of 
International Law as a body of rules of conduct binding upon States irrespective 
of their Municipal Law and legislation, implies the idea of their subjection to 
International Law and makes it impossible to accept their claim to absolute 
sovereignty in the international sphere. Their mutual independence is indeed a 
fundamental rule of International Law; but it is only by reference to a higher legal 
order that the mutual independence of States, viewed as a rule of law, is 
conceivable. On the other hand, owing to the weakness of International Law, its 
supremacy over the States composing the international community is limited to 
the duty which it imposes upon them to observe and, within a restricted sphere, 
to submit to the enforcement of the existing rules created by custom or treaty or 
flowing from the very existence of the society of States. It does not as yet include 
a competence on the part of the international community to impose fresh 
obligations upon an unwilling State. . . . These aspects of sovereignty have been 
the principal cause of the criticism levelled against it in the two decades after the 
First World War. It is being increasingly realised that progress in International Law, 
the maintenance of international peace and, with it, of independent national States, 
are in the long run conditioned by a partial surrender of their sovereignty so as to 
render possible, within a limited sphere, the process of international legislation 
and, within a necessarily unlimited sphere, the securing of the rule of law as 
ascertained by international tribunals endowed with obligatory jurisdiction. 

The basic dilemma of trying to regulate sovereign States by international law 
was captured well by Brierly, who observed: " [I] f sovereignty means absolute 
power, and if States are sovereign in that sense, they cannot at the same time be 
subject to law . . . [and] there is no escape from the conclusion that international 
law is nothing but a delusion." It was because states recognized the utility of 
rules of international law that they consented to surrender aspects of the 
traditional sovereignty doctrine. 

Modem Restrictions on Sovereignty 

The United Nations Charter has been ratified by 175 States and the obligations 
it imposes are totally inconsistent with the early doctrine of absolute sovereignty. 
Professor Charles G. Fenwick, who directed the Department of Legal Affairs of 
the Pan American Union for fourteen years prior to 1962, has written: 

It is obvious that the term "sovereignty'* has now lost the meaning attributed to 
it at the beginning of the twentieth century. States may still be described as 
"sovereign States," but their sovereignty is sovereignty under the law to which 
they have bound themselves by the Charter; or better, perhaps, it is sovereignty 
in the fields of national or domestic jurisdiction that lie outside the newer areas 
controlled by international law. . . . The term may continue to be used, but it must 
be understood in a manner consistent with the maintenance of law and order in 
the international community. States have now abandoned their former right to be 
the judges in their own cause and the right to take the law into their own hands; 
they have now recognized the higher right of the international community, acting 



Turner 57 

through its appropriate organs, to protect the peace of the community and to 
remove the causes of dissent that lead to acts of violence. An individual State may, 
indeed, defy the law; it may refuse to cooperate in putting the procedures of pacific 
setdement into effect; but it cannot offer in justification of its conduct any legal 
claim of "sovereign right." 

Indeed, Professor Fenwick notes that "Many jurists have urged that the term 
'sovereignty' should be discarded, as being out of harmony with the actual facts 
of international intercourse." 

The International Law Commission devoted part of its first session in 1949 to 
drafting, at the request of the U.N. General Assembly, a Draft Declaration on 
Rights and Duties of States. Approved by a vote of 1 1 to 2, it included these 
articles: 

Article 2 

Every State has the right to exercise jurisdiction over its territory and over all 
persons and things therein, subject to the immunities recognized by international 
law. 



Article 4 

Every State has the duty to refrain from fomenting civil strife in the territory of 
another State, and to prevent the organization within its territory of activities 
calculated to foment such civil strife. 



Article 7 

Every State has the duty to ensure that conditions prevailing in its territory do not 
menace international peace and order. 



Article 12 

Every State has the right of individual or collective self-defense against armed 
attack. 



Article 14 

Every State has the duty to conduct its relations with other States in accordance 
with international law and with the principle that the sovereignty of each State is 
subject to the supremacy of international law. 

These restrictions on "independence" stem both from customary international 
law and from treaty, and Oppenheim writes "[t]here is hardly a State in existence 
which is not in one point or another restricted in its territorial supremacy by 



58 Legal & Moral Constraints on Low-Intensity Conflict 

treaties with foreign Powers."" While it has on occasion been suggested that a 
treaty should not be permitted to restrict a State's sovereign authority, the 
majority view — supported by a series of World Court opinions — has long been 
that the right to enter into agreements limiting sovereignty is itself an element 
of the exercise of sovereign power. 

From time to time throughout history it has been suggested that sovereignty 
is inalienable and cannot be limited even by treaty. This view has been soundly 
rejected in the modern world; and, indeed, the Permanent Court of International 
Justice held as early as 1923 (Wimbledon case) that entering into a treaty 
commitment which limits sovereignty is itself an exercise of sovereignty. The 
Court reasoned: 

The Court declines to see in the conclusion of any treaty by which a State 
undertakes to perform or refrain from performing a particular act an abandonment 
of its sovereignty. No doubt any convention creating an obligation of this kind 
places a restriction upon the exercise of the sovereign rights of the State in the 
sense that it requires them to be exercised in a certain way. But the right of entering 
into international engagements is an attribute of State sovereignty. 

The Concept Of Jus Cogens 

Another dramatic departure from traditional concepts of sovereignty and 
international law has been the development of the theory of "peremptory norms" 
(jus cogens) of international law which are binding upon all States irrespective of 
their consent. This is a very new doctrine, and while there is widespread (but 
not unanimous) agreement that such rules exist, there is far less accord as to the 
actual content of this "higher" body of law. 

Historically, "consent" was viewed as the basis for all rules of international 
law. A State might undertake an obligation by ratifying a treaty, or it might 
become bound by a consistent practice of obeying certain rules in the belief 
(opinio juris) that they were legally binding — the process through which cus- 
tomary international law was formed. But even as a new customary rule is formed, 
if an existing State registered its clear objection it would not be held bound by 
the new rule. 

As early as 1970, in the Barcelona Traction case, the International Court of 
Justice distinguished between the normal bilateral obligations States make to each 
other and a higher level of duties owed to "the international community as a 
whole." The Court explained: "Such obligations derive, for example, in con- 
temporary international law, from the outlawing of acts of aggression, and of 
genocide, and also from the principles and rules concerning the basic rights of 
the human person, including protection from slavery and racial discrim- 
ination." 



Turner 59 

The legal theory of "peremptory norms" was embraced by the International 
Law Commission in the mid-1960s, and through its efforts, was embodied in the 
1969 Vienna Convention on the Law of Treaties. Some commentators trace 

CO 

its origins to municipal legal principles of "public policy,"" but I suggest that 
peremptory norms reflect a return to once discredited principles of Natural Law. 
Irrespective of their intellectual origins, they have dramatically transformed the 
content of international law. Whereas historically it was viewed as a wrongful 
act for a state to publicly criticize the conduct of another sovereign State for its 
internal policies, today all States are held to owe an obligation to all mankind 
(obligatio erga omnes) not to commit armed aggression, genocide, slavery, and a 
number of other human rights violations. 

Low-Intensity Conflict and the Modern 
Law of Sovereignty 

The concept of sovereignty has changed markedly over the past four centuries. 
Today it is not only a more limited doctrine, but there is widespread agreement that 
its contemporary basis is the will of the people. By 1956, more than 70% of the 
nations of the world, including within their borders about 80% of the world's total 
population, were governed by constitutions which declared that sovereignty rests 
ultimately in the people of the state. When one adds to this figure the number of 
States which view sovereignty as being vested joindy in a monarch or other 
"sovereign" and the people, "the percentage of the world's total population who 
consider the people to be a source of sovereign power becomes over 95 percent." 

There may be some interesting and largely unexplored aspects of a growing 
consensus that the people of a State are the ultimate source of its sovereignty, 
particularly in this era of democratic revolution. Between 1979 and 1986, the 
number of Latin American countries that chose their leaders by reasonably free 
and democratic elections increased from approximately one third to over 80 
percent. Today the figure is even higher. In the past three to four years a similar 
democratic revolution has swept through Eastern Europe and the former Soviet 
Union. Even in Africa, the trend is toward democracy (although much remains 
to be done). According to the prestigious human rights group, Freedom House, 
1991 was the first year in which "both the number of Free countries and their 
populations outnumbered the Not Free countries and their populations." 
Indeed, this data indicates that more than 70 percent of the 171 nations examined 
were either democracies or in some stage of democratic transition. 

Given the fact that democracies tend not to attack other democracies, the 
cause of peace may ultimately be served by restricting the role which non- 
democratic States are permitted to play in the world community. Certainly they 
should be protected against external aggression; but if sovereign power is the 
exclusive province of the people in every State, is it logical to allow totalitarian 



60 Legal & Moral Constraints on Low-Intensity Conflict 

or authoritarian regimes to exercise it in the absence of a legitimate expression 
of the popular will vesting them with such authority? This line of reasoning could 
ultimately justify placing a great deal of pressure on non-democratic States to 
permit their people to select a government of choice by majority rule. In so 
doing, it would enhance justice and the long-term peace. 

It is clear that the classical view of absolute State supremacy is no longer an 
element of the modern doctrine of "sovereignty." States are today limited in 
many ways by customary and conventional international law; and even non-con- 
senting States are constrained by the peremptory norms of international law often 
called jus cogens. No one would seriously challenge the 1952 observation of 
former World Court Justice Philip C. Jessup that: 

[T]he regulation of the threat or use of force is not inconsistent with the principle 
of sovereign equality [of States]. A resort to war can, therefore, no longer be 
justified by an invocation of the old concept of absolute sovereignty, which in the 
last analysis left every State the final judge of its own cause. 

The Appeal of Low-Intensity Aggression 

It should be understood that a major reason for the growth of low-intensity 
conflict as a weapon of choice by radical regimes and aggressor States in the 
post-Charter world is that more obvious uses of aggressive force are so clearly 
oudawed and are usually easily identified. The fact that low-intensity aggression 
has become so often the weapon of choice for modern aggressors stands as 
evidence of the success of the basic provisions of the Charter, which has clearly 
prohibited more obvious forms of aggression. 

By calling for a narrow interpretation of the rights of States to defend 
themselves (and each other) from all levels of aggression below all-out "war," 
these aggressor States believe they can open the way for the lawful destruction 
or destablization of peaceful neighbors through low-intensity aggression. As will 
be shown, neither the purposes set forth in the Charter nor the travaux of relevant 
provisions of the Charter support the proposition that the United Nations was 
established to make it safe for aggressors to subvert their neighbors gradually 
through low-intensity conflict, and States which genuinely subscribe to the 
principles of the Charter must not permit the document to be misinterpreted to 
permit this wrongful end. Ultimately, the low-intensity conflict scenario is 
selected because it provides a colorable claim of legitimacy (being less obvious) 
and because its proponents can cite a range of legal scholars who honestly (but 
wrongly) believe it is unlawful for nations to assist victims of such aggression. If 
such tactics are allowed to succeed, aggression can be expected to increase. The 
men who met in San Francisco may well have been thinking primarily about 
deterring World War III, but the clear intent of the Charter they produced was 
to outlaw any use of force by States contrary to the purposes of the Charter. It 



Turner 61 

is therefore imperative that this alleged "loophole" be dealt with firmly in defense 
of the Charter. 

Limitations On Threats And Use Of Armed Force 

International law clearly prohibits any State from interfering in the internal 
affairs or infringing the territorial integrity or political independence of any other 
State in the absence of a legal right to do so. Indeed, it can be argued that the 
most fundamental of all substantive rules of contemporary international law is 
the prohibition found in Article 2(4) of the U.N. Charter prohibiting the "threat 
or use of force against the territorial integrity or political independence of any 
State, or in any other manner inconsistent with the Purposes of the United 
Nations." 

Judge Jessup has observed: 

Returning to the terms of the Charter of the United Nations, it may be noted that 
Article 2, paragraph 4, is not an absolute prohibition of the use of force. If force 
can be used in a manner which does not threaten the territorial integrity or political 
independence of a State, it escapes the restriction of the first clause. But it must 
then be established that it is not "in any other manner inconsistent with the 
Purposes of the United Nations." 

Article 1, paragraph 1, of the U.N. Charter sets forth the organization's 
"purposes": 

The purposes of the United Nations are: 

1 . To maintain international peace and security, and to that end, to take effective 
collective measures for the prevention and removal of threats to the peace, and for 
the suppression of acts of aggression or other breaches of the peace, and to bring 
about by peaceful means, and in conformity with the principles of justice and 
international law, adjustment or setdement of international disputes or situations 
which might lead to a breach of the peace. 

It is clear that Article 2(4) was intended to be comprehensive in scope, 
outlawing not only "war" but any non-defensive use of force inconsistent with 
the Charter's principles. Consider, for example, the result when the U.N. 
General Assembly in 1951 asked the International Law Commission to come up 
with a comprehensive "definition of aggression," and the ILC provided this broad 
formula: 

Aggression is a threat or use of force by a State or Government against another 
State, in any manner, whatever the weapons employed and whether openly or 
otherwise, for any reason or for any purpose other than individual or collective 
self-defense or in pursuance of a decision or recommendation by a competent 
organ of the United Nations. 



62 Legal & Moral Constraints on Low-Intensity Conflict 

This would seem to be sufficiently all-encompassing to satisfy anyone; but, in 
the end, this definition was rejected by a vote of 7 to 3, because it was considered 
"dangerously restrictive" and not "comprehensive" enough. 

The United States was one of several countries that was very wary of trying 
to write a definition of "aggression," out of fear that it would inadvertendy 
include some loophole allowing aggressive uses of force. President Truman 
explained the traditional American view: 

At the San Francisco Conference on International Organization (1945) there was 
a movement to insert a definition of aggression in the United Nations Charter. 
The United States opposed this proposal. It took the position that a definition of 
aggression cannot be so comprehensive as to include all cases of aggression and 
cannot take into account the various circumstances which might enter into the 
determination of aggression in a particular case. Any definition of aggression is a 
trap for the innocent and an invitation to the guilty. The United States position 
prevailed at San Francisco, and the Charter adopted a system whereby the 
appropriate U.N. organ, in the first instance the Security Council, would deter- 
mine on the basis of the facts of a particular case whether aggression has taken 
place. 

In addition to uses of force authorized by the Security Council and certain 
narrow exceptions (like using force to suppress piracy or the slave-trade), the one 
remaining area of lawful use of force by individual States is self-defense. 

Scope Of The Right To Self-Defense 

It is universally recognized that a State may take some actions which would 
otherwise violate the rights of another State if it must safeguard itself from the 
latter's wrongful conduct. Depending upon the nature of the initial wrongful 
act, the response is classified as a retorsion, a reprisal, self-help, self-defense, 
or by other similar terms. The doctrine of "self-preservation" or "self-defense" 
dates back to the earliest days of the law of nations, and is recognized as a 
pre-existing "inherent right" of States by the U.N. Charter. 

Indeed, there is no more fundamental right of sovereign States than the right 
to exist ; and this right forms the foundation of the right of States to defend 
themselves from the wrongful conduct of other states. Initially, of course, the 
"right" of States to exist was largely predicated upon their ability to exist in a 
balance-of-power world. Until the twentieth century, States also had a sovereign 
right to engage in armed aggression, and a State unwilling or unable to defend 
itself might quickly cease to exist. 

When the world community first sought to "oudaw" war through the 1928 
Kellogg-Briand Treaty, the right of self-defense was carefully preserved. On 23 
June 1928, the United States delivered notes to the principal foreign offices of 
the world stating: 



Turner 63 

It believes chat the right of self-defense is inherent in every sovereign State and 
implicit in every treaty. No specific reference to that inalienable attribute of sovereignty 
is therefore necessary or desirable. It is no less evident that resort to war in violation 
of the proposed treaty by one of the parties thereto would release the other parties 
from their obligations under the treaty towards the belligerent State. 

Judge Jessup notes that this U.S. declaration "suggests that the right of 
self-defense by its very nature must escape legal regulation." This is reinforced 
by another statement made by the United States during the negotiation of the 
treaty: 

Every nation is free at all times and regardless of treaty provisions to defend its 
territory from attack or invasion and it alone is competent to decide whether 
circumstances require recourse to war in self-defense. . . . Express recognition by 
treaty of this inalienable right, however, gives rise to the same difficulty en- 
countered in any effort to define aggression. It is the identical question approached 
from the other side. Inasmuch as no treaty provision can add to the natural right 
of self-defense, it is not in the interest of peace that a treaty should stipulate a juristic 
conception of self-defense since it is far too easy for the unscrupulous to mold 
events to accord with an agreed definition. 

It is also clear that other States shared the U.S. view that the 1928 treaty did 
not limit the right to self-defense. Professor Brierly notes: "In forbidding war as 
an 'instrument of national policy' the Pact did not forbid recourse to war in 
self-defence, and in the negotiations concerning the Pact several States made 
express declarations emphasizing that self-defence is a natural right not touched 
by the Pact." 75 

Ultimately, the "Pact of Paris," as the Kellogg-Briand treaty was also known, 
proved to be without teeth. When Japan invaded Manchuria in 1931, and Italy 
entered Ethiopia a few years later, the world community did little but protest — 
and, in the process, the theory that "law" offered a solution to aggressive war 
was widely discredited. 

Fortunately, as World War II came to a close, men of uncommon wisdom 
recognized the promise of legal institutions in the struggle against aggression and 
the United Nations was founded. Its Charter sought both to outlaw aggressive 
uses of armed force and to provide an effective mechanism to enforce peace if 
that proved necessary. Properly understood, the United Nations Charter is 
designed to promote multinational responses to any international use-of-force 
by States in violation of the Charter. Disputes are supposed to be settled peacefully 
by the parties to them, but if that proves impossible the Security Council is 
empowered, under certain conditions, to authorize or initiate the use of defensive 
armed force on behalf of the world community. 

However, it was understood from the start that the Security Council might 
prove unable to act — such as when a permanent member exercises its veto — and 



64 Legal & Moral Constraints on Low-Intensity Conflict 

thus the historic right of States to use necessary and proportional force in their 
own defense, or in defense of other peaceful States who are victims of armed 
aggression, was expressly preserved. 

Self-Defense and Low-Intensity Conflict 

The right of self-defense (and of collective self-defense) clearly exists in the 
case of massive, open, and direct aggression — such as the August 1990 Iraqi 
invasion of Kuwait. But the student of low-intensity conflict is likely to be more 
concerned about the doctrine's scope in connection with small-scale covert 
aggression, or sporadic incidents of terrorism. Although some writers argue that 
the inclusion of the words "armed attack" in Article 51 of the U.N. Charter 
implicitly prohibits States from engaging in measures of self-defense in response 
to lower-intensity forms of aggression, this position is unpersuasive. 

To begin with, the equally authentic French-language text of Article 51 says 
agression armee ("armed aggression"), which is less subject to interpretation as 
requiring a massive "attack" before defensive measures are permitted. As will be 
discussed, the travaux preparatories of Article 51 also supports the interpretation 
that it was not intended to limit the pre-existing rights of States to defend 
themselves against uses of force by other States. Furthermore, a careful reading 
of Article 2(4) of the Charter — the textual embodiment of the modern prohibi- 
tion against the use of force in international relations — suggests that traditional 
measures of self-defense are not barred by the Charter. The article says: 

All Members shall refrain in their international relations from the threat or use of 
force against the territorial integrity or political independence of any State, or in 
any other manner inconsistent with the Purposes of the United Nations. 

A brief, necessary, and proportional use of force in response to a terrorist attack 
is not an attack "against the territorial integrity or political independence" of any 
state. 

Reconciling Articles 2(4) and 51 of the Charter 

International lawyers are divided on the scope of Article 2(4). As explained 
by Professor Lung-chu Chen, in his 1989 work, An Introduction to Contemporary 
International Law : 

One view takes the position that self-help, beyond self-defense, is impermis- 
sible. The arguments for this view may be summarized as follows: (1) Articles 
2(3) and 2(4) of the Charter project the fundamental community policies of 
promoting peaceful change and of minimizing coercion; (2) Article 2(4), read 
in conjunction with Article 51, and the rest of the provisions contained in 
Chapter VII of the Charter, dealing with "action with respect to threats to the 



Turner 65 

peace, breaches of the peace, and acts of aggression," shows clearly that the U.N. 
Charter as a whole prohibits the use of military force save for self-defense and 
collective enforcement action (community police action); (3) the blanket prohibi- 
tion of the use of force embodied in Article 2(4) suggests that self-help is 
inconsistent with the purposes of the United Nations and hence impermissible. . 
. . and (5) in the nuclear age, when humanity lives under the shadow of nuclear 
holocaust, forcible self-help could readily escalate beyond management. . . . 

A contrary view maintains that Article 2(4) is not a blanket prohibition of all uses 
of military force and expressly prohibits only those threats or uses of force directed 
"against the territorial integrity or political independence of a State, or in any other 
manner inconsistent with the Purposes of the United Nations." When it seeks 
neither a territorial change nor a challenge to the political independence of the 
State concerned, an act of self-help taken in response to a prior unlawful act, in 
order to secure compliance with international law is to help secure "justice," as 
enunciated in Article 2(3) of the Charter, and is not inconsistent with the purposes 
of the organization. Hence, Article 2(4) is no necessary bar to an otherwise 
permissible act of self-help. . . . 

Accordingly, in the absence of effective collective machinery to protect against 
lawlessness and deprivation, the remedy of self-help cannot be ruled out. The 
Charter's general proscription of the use of force was predicated on the estab- 
lishment within the United Nations of effective centralized decision and enforce- 
ment. So long as this projected condition remains unfulfilled, the general 
community cannot afford a paralysis that invites lawlessness and deprivation by 
particular States with impunity. 

Professor Chen notes that "the remedy of self-help ... is highly susceptible 
to abuse and misuse," and policy-makers need to consider carefully the ramifica- 
tions of seeking an expanded interpretation of this power. 

One of the reasons that many scholars seek to define "armed attack" narrowly 
is that they do not want a minor border crossing or other small incident to 
become a lawful justification for "self-defense" measures which might lead to 
a major war. After all, a clear purpose of the United Nations system is to promote 
peace. Professor Sorensen writes: 

Armed attack. In establishing whether a State has committed an armed attack or 
armed aggression against another State, the following factors must, in varying 
degrees, be taken into consideration: military character of the action, intention of 
the attacker or aggressor, amount of force used and the resulting seriousness of the 
situation, and the 'priority principle,' that is, the principle of the first attacker. 

It appears to be beyond doubt that an armed attack has occurred when armed 
forces of one State, regular, irregular, or armed bands composed of private 
individuals controlled by, and in fact remaining under the orders of, the State, start 
using violence in or against the territory of another State, or against its forces on 
or over the open sea, or its forces that stay in foreign territory either by agreement 
of the sovereign or by virtue of a lawful military occupation. 

But not any and every occurrence that displays these characteristics is automatically 
an armed attack. . . . The notion of an armed attack conveys the idea of the gravity 



66 Legal & Moral Constraints on Low-Intensity Conflict 

of a situation through the amount of force employed. In frontier incidents these 
elements are usually absent. Where a State aids and abets with military force internal 
disorders or revolution in another State, the question whether an armed attack has 
thereby been committed should be tested in the light of criteria that are identical 
with those enumerated at the beginning of the preceding paragraph. . . . n 

One might argue that the "necessity" and "proportionality" requirements of 
self-defense law would take care of the problem of responding to a small border 
incident by causing World War III. Before force may be used, non-forcible 
means of dispute resolution must be exhausted (or be clearly unable to resolve 
the problem), and even then no more force may be used than is necessary to 
achieve the permissible objective. While S0renson's "criteria" are not helpful in 
deciding how to respond to armed intervention, his second paragraph (above) 
presents a reasonably good characterization of the scope of the law of self-defense 
both before and subsequent to the Charter if one accepts the argument that 
Article 2(4) was not intended to alter this inherent right of States. 

By this reasoning, contemporary international law does permit a State to send 
its agents into the territory of another State and use necessary and proportional 
force against it in response to such things as an ongoing terrorist campaign 
involving armed individuals being sent from the second State to the first State 
and engaging in illegal acts of force (bombings, assassinations, hijackings, etc.). 
True, a State may not use a single terrorist bombing as an excuse to send its entire 
army into a neighboring State and conquer its territory. The proportionality 
doctrine protects against such an excessive response. But so long as the response 
is proportional to that which is necessary to bring an end to future acts of force 
against the first State, international law does not preclude it. 

Articles 2(4) and 51 of the Charter should be analyzed as companion rules in the 
regulation of armed force in the modem world. However, the common practice of 
seeking to define the scope of self-defense primarily by focusing on the term "armed 
attack" seems to be misplaced. Properly understood, Article 2(4) provides the basic 
prohibition in the Charter against uses of force by individual States, and Article 51 
was clearly added later to clarify that States would not be precluded by the Charter 
(that is, by Article 2(4) of the Charter) from defending themselves and coming to 
each other's aid if the Security Council were to prove unable to respond effectively 
to armed aggression. True, the words "armed attack" were chosen in English to 
make this point; but the great effort made to avoid such terms as "war" or even 
"aggression" in Article 2(4) — on the theory that such terms might be construed 
narrowly — should make it clear that this "example" was given simply because the 
drafters were writing in the shadow of World War II and envisioned future 
international aggression to follow a similar pattern. 

Professor Louis Henkin, of Columbia Law School, favors a narrow reading 
of Article 51 and writes: "The fair reading of Article 51 permits unilateral use of 
force only in a very narrow and clear circumstance, in self-defense if an armed 



Turner 67 

attack occurs. Nothing in the history of the drafting (the travaux preparatoires) 
suggests that the framers of the Charter intended something broader than the 
language implies. " I disagree, and would note that if these articles were intended 
to terminate pre-existing rights of customary law otherwise consistent with the 
Charter, the entire U.N. operation in response to the North Korean invasion of 
South Korea in June 1950 may have been improper. First of all, article 2(4) 
specifies expressly that "All Members shall refrain . . . from the threat or use of 
force . . . [emphasis added]." Since North Korea was not even arguably a 
"Member" of the United Nations, Professor Henkin's literalist interpretation 
would appear to permit non-members to engage in the prohibited conduct. 
Furthermore, a similarly strict reading of the text of Article 51 would suggest 
that it only preserves "the inherent right of individual or collective self-defense 
if an armed attack occurs against a Member of the United Nations." Professor 
Henkin, et ai, contend that, by implication the Charter destroys the remainder 
of the historic customary law right of self-defense — if he is correct, it would seem 
to follow with equal clarity that there is no right to self-defense in the event of 
an armed attack against a wow-Member of the United Nations. Since South Korea 
was not a U.N. Member in 1950, by Professor Henkin's rules of interpretation 
the U.N. and its members acted wrongfully in resisting North Korean aggression. 
Rather than relying primarily on the "armed attack" language in Article 51, 
the scope of the right of self-defense can best be understood by a more detailed 
examination of Article 2(4) — which established the general prohibition against 
using armed force. A textual analysis of this provision would certainly not seem 
to preclude measures taken in self-defense against a prior violation of the 
provisions of Article 2(4), and when the travaux prkparatoire is consulted to clarify 
any ambiguities the case is even stronger. As Professor Brierly notes: "Com- 
mittee I at San Francisco, which dealt with Article 2(4), said outright that 'the 
use of arms in legitimate self-defense remains admitted and unimpaired." He 
argues further that the travaux of the San Francisco Conference: 

[SJhow that Article 51 was introduced into the Charter in Committee III/4 
primarily for the purpose of harmonizing regional organizations for defence with 
the powers and responsibilities given to the Security Council for maintaining 
peace; and they do not indicate any conscious intention upon the part of 
Committee III/4, in including the words 'if an armed attack occurs*, to put outside 
the law forcible self-defence against unlawful acts of force not amounting to an 
armed attack. 

Professor Brierly concludes that a broad interpretation of Article 51 is 
supported by the fact that the Russian text of the Charter refers to self-defense 
as an "imprescriptible" rather than an "inherent" right, and the French text calls 
it a "natural" right — both consistent with the view taken by the United States 
during the negotiation of the Kellogg-Briand Pact that self-defense was an 



68 Legal & Moral Constraints on Low-Intensity Conflict 

"inalienable" right. Furthermore, the French text ("dans un cos ou un Membre 
des Nations Unies est Vobjet d'une agression armSe") is not expressed in the form of 
a condition and suggests that the English "if " was used to express an hypothesis 
rather than a condition — which is, of course, one of the natural uses of "if. 

A similar view is taken by Professor Derek Bowett, in his 1958 book, 
Self-Defence in International Law. 

It is incontestable that prior to the Charter a right of self-defence was recognized 
by general international law, so that the question which must be posed is whether 
the Charter contains a prohibition of action which would normally be legitimate 
as the exercise of self-defence, a right admitted and recognized by the general law. 
We must presuppose that rights formerly belonging to member States continue 
except in so far as obligations inconsistent with those existing rights are assumed 
under the Charter. . . . 

It is, therefore, fallacious to assume that members have only those rights which the 
Charter accords to them; on the contrary they have those rights which general 
international law accords to them except and in so far as they have surrendered 
them under the Charter. . . . 

Now the relevant obligation assumed by members is, prima facie, that contained 
in Art. 2(4): 

"All Members shall refrain in their international relations from the threat or 
use of force against the territorial integrity or political independence of any 
State, or in any other manner inconsistent with the Purposes of the United 
Nations." 

. . . [T]he view of Committee I at San Francisco was that this prohibition left the 
right of self-defence unimpaired; in the words of its rapporteur 'the use of arms in 
legitimate self-defence remains admitted and unimpaired/ Indeed, it is difficult to 
see what other conclusion could be reached, for if we examine the substantive 
rights protected by self-defence the absence of any inconsistency with Art. 2(4) is 
apparent. Action undertaken for the purpose of, and limited to, the defence of a 
State's political independence, territorial integrity, the lives and property of its 
nationals (and even to protect its economic independence) cannot by definition 
involve a threat or use of force 'against the territorial integrity or political 
independence' of any other State. To the extent that action in self-defence would 
involve a breach of this obligation it would ipso facto cease to be within the 
requirements of self-defence as permitted by general international law. Nor can it 
be said that the protection of those same substantive rights by the exercise of 
self-defence is 'in any manner inconsistent with the Purposes of the United 
Nations'; those purposes hinge primarily on the maintenance of international peace 
and security, and it would be a strange conclusion if a State's protection of its own 
legitimate interests were inconsistent with that end. 

Of particular relevance to the field of low-intensity conflict, the right of 
self-defense permits States to use necessary and proportional force in response to 
direct and indirect forms of armed aggression. One of the world's leading 



Turner 69 

authorities on the United Nations, Professor Rosalyn Higgins of the University 
of London, provides revealing examples: 

This right [of self-defense] is available equally to an indirect use of force as well as 
a direct use of force. A State may protect itself against irregular forces. Thus the 
Lebanese delegate, in reserving to his country the right of self-defense against 
alleged indirect violence by the UAR in 1958, stated that: 

"Article 51 does not speak of a direct armed attack. It speaks of armed attack. 
It wishes to cover all cases of attack, direct or indirect, so long as it is an 
armed attack ... [I]s there any difference from the point of view of the 
effects between direct armed attack or indirect armed attack if both of them 
are armed and if both of them are designed to menace the independence of 
a country?" 

The claim of self-defense against indirect military aggression was also raised by 
France during the Tunisian-French mutual charges of aggression in 1958. Declar- 
ing that Sakiet-Sidi-Youssef, which it had bombed, was a rebel garrison for the 
FLN, training recruits and providing arms, the French Government insisted that 
its actions were defensive. 

Professors Ann and AJ. Thomas have taken a similar view, arguing specifically 
that the Charter permits a use of defensive armed force against States which 
initiate terrorist attacks using dissident nationals of the victim State: 

The force which should comprise "armed attack" has been broadly defined as "any 
elements at the disposal of States which are capable of destroying life and property 
or inflicting serious damage." This would include not only a direct use of force 
whereby a State operates through regular military units, but also an indirect use of 
force whereby a State operates through irregular groups or terrorists who are 
citizens but political dissidents of the victim nation. The inter- American system 
has characterized such indirect use of force as internal aggression in that it includes 
the aiding or influencing by another government of hostile and illegal conduct 
against the established political order of government in another country. Since it 
is usually an attack against the internal order through an attempt to overthrow or 
harass the victim government by promoting civil strife and internal upheaval or, 
once civil strife has commenced, by an attempt to take over the leadership of those 
in rebellion, it is a vicarious armed attack. . . . 



That such vicarious, indirect armed aggression falls within the term "armed 
attack" as used in Article 51 of the UN Charter has been asserted on several 
occasions. In the Greek Case y which came before the UN in December 1946, 
the United States took the position that Yugoslavian, Albanian, and Bulgarian 
assistance to guerrilla forces fighting against the Greek Government in civil strife 
in that country amounted to armed attack making Article 51 applicable. . . . 
Secretary of State Dulles . . . was of the opinion that the words "armed attack" 
included armed internal revolution which was fomented from abroad and aided 
and assisted from abroad. 



70 Legal & Moral Constraints on Low-Intensity Conflict 

Historic U.S. View 

The United States Government has historically taken the view that the 
right of self-defense was unimpaired by the Charter and remains broad to 
encompass any form of armed international aggression. Article 51 was drafted 
by a subcommittee of Committee III in San Francisco under the able 
leadership of U.S. Senator Arthur Vandenberg. In summarizing the status of 
the negotiations at the second meeting of Committee III on 13 June 1945, 
Vandenberg stated: "[W]e have here recognized the inherent right of self- 
defense, whether individual or collective, which permits any sovereign State 
among us ... to ward off attack pending adequate action by the parent body. 
And we specifically recognize the continuous validity of mutual protection 
pacts . . . . This language is hardly consistent with a view that Article 
51 was intended to vitiate all but a narrow area ("armed attack") of the 
aggression spectrum in which defensive force might be used. Indeed, 
Vandenberg later said that had the conference not agreed to reaffirm the 
inherent right of collective self-defense, "there would have been no 
Charter." He argued: "Nothing in the Charter is of greater immediate 
importance and nothing in the Charter is of equal potential impor- 
tance." 90 

One month later, when the ink on the Charter was barely dry, John Foster 
Dulles — who had advised the U.S. delegation to the San Francisco Conference — 
told the Senate Foreign Relations Committee: 

At San Francisco, one of the things which we stood for most stoudy, and which 
we achieved with the greatest difficulty, was a recognition of the fact that that 
doctrine of self-defense, enlarged at Chapultepec to be a doctrine of collective 
self-defense, could stand unimpaired and could function without the approval of 
the Security Council. 

In May 1947 the U.N. Commission of Investigation Concerning Greek 
Frontier Incidents reported to the Security Council that Yugoslavia, Albania, 

MM 

and Bulgaria had "supported the guerrilla warfare in Greece." During the 
Security Council's consideration of the issue (prior to action being blocked by a 
Soviet veto), a U.S. representative "expressed the view that the failure of the 
Security Council to act did not preclude individual or collective action by States 
willing to act, so long as the action taken was in accordance with the general 
purposes and principles of the United Nations." He added: 

I do not think that we should interpret narrowly the "Great Charter" of the United 
Nations. In modern times, there are many ways in which force can be used by one 
State against the territorial integrity of another. Invasion by organized armies is not 
the only means for delivering an attack against a country's independence. Force is 



Turner 71 

effectively used today through devious methods of infiltration, intimidation and 
subterfuge. 

But this does not deceive anyone. No intelligent person in possession of the facts 
can fail to recognize here the use of force, however devious the subterfuge may 
be. We must recognize what intelligent and informed citizens already know. 
Yugoslavia, Bulgaria and Albania, in supporting guerrillas in northern Greece, have 
been using force against the territorial integrity and political independence of 
Greece. They have in fact been committing acts of the very kind which the United 
Nations was designed to prevent, and have violated the most important of the basic 
principles upon which our Organization was founded. 

In 1966 Secretary of State Dean Rusk restated the consistent United States 
view when he told the Foreign Relations Committee that "Article 51 of the 
Charter was put in specifically to make it clear there was nothing else in the 
Charter, nothing else in the Charter or anywhere, that impairs the inherent right 
of individual or collective self-defense." 

Complying With The Charter's 
Reporting Requirement 

On several occasions in recent years the United States has used force in a 
manner that was probably consistent with the self-defense provisions of the 
Charter, but has been deemed a lawbreaker because it failed to comply with the 
reporting provisions of Article 51. While one might have argued that the 
widespread use of the Soviet veto had made the Security Council impotent 
and the reporting requirement moot, the active involvement of the Security 
Council in the recent Gulf conflict reinforces arguments that future defensive 
uses of force ought to be promptly reported to the Council, accompanied by 
a detailed report giving full justification for the U.S. action. 

Specific Problem Areas: 
Self-Defense of Nationals Abroad 

International law has long recognized a right of States to use necessary and 
proportional force to protect their nationals from threats on the high seas or on 
foreign territory, and many scholars contend that this right is not eliminated by 
the U.N. Charter. Thus, Professor Oppenheim writes: "The right of protection 
over citizens abroad, which a State holds, may cause an intervention by right to 
which the other party is legally bound to submit. And it matters not whether 
protection of the life, security, honour, or property of a citizen abroad is 
concerned." 97 

In contrast, some scholars argue that the Charter requires States to forego the 
use of military force to protect endangered citizens abroad, and instead requires 
them to seek peaceful resolution of such disputes. The proposition is arguable, 



72 Legal & Moral Constraints on Low-Intensity Conflict 

but the better view, in my opinion, is that force may only be used when 
"necessary" (that is, when peaceful means of dispute resolution have been 
exhausted or when it is evident that such measures would not work and further 
delays may jeopardize the lives or safety of the individuals involved). 

Force will only be lawful as a last resort and under circumstances where there 
is a genuine and justifiable fear that harm may come to the citizens if prompt 
action is not taken. This remains an area of great controversy, and questionable 
uses of force in this area are likely to be denounced not only by much of the 
world but by a diverse group of Americans as well. Indeed, if this power is abused, 
a situation might even develop in which foreign governments refuse to allow 
Americans to enter their territory for fear of providing justification for such 
intervention. Like all lawful self-defense rights, the power to protect endangered 
Americans abroad is important and should not be abused. 

The Problem of the Innocent or 
Inattentive Host State 

It is not difficult to justify a necessary and proportional defensive response to 
aggression ordered or encouraged by a foreign State. A more difficult situation 
exists when the State claims sovereignty over territory that is being used by groups 
or individuals who are not its agents as a base for terrorist attacks or other acts of 
force against foreign countries. 

This is not a new problem. Indeed, the classic 1 837 case of the steamer Caroline, 

QQ 

which will be discussed below, involved an attack by Canadian militiamen 

upon a U.S. owned steamer docked on the American side of the Niagara River 

which was being used to transport men and equipment to support an insurgency 

in Canada. Professor Brierly notes that the Canadians justified their attack on the 

steamer on the grounds that "[t]he American Government had shown itself 

i no 
unable or unwilling to prevent this traffic. ..." 

In 1916 the United States sent a column of cavalry across the Rio Grande in 
hot pursuit of Francisco "Pancho" Villa, who had fled across the border to the 
safety of Mexico following one of numerous attacks into the United States. 
Mexico was in a state of civil war and did not take effective steps to prevent the 
use of Mexican territory to launch armed attacks against the United States. 
Reasoning that the failure of the Government of Mexico to put an end to the 
raids from Mexican territory justified a U.S. defensive response, the United States 
simply notified the Mexican President and made no request for permission. 

Half a century later, when hundreds of thousands of U.S. forces had been 
deployed to help defend South Vietnam, a similar problem arose in connection 
with North Vietnamese and Viet Cong sanctuaries inside "neutral" Cambodia. 
The territory in question was largely uninhabited prior to the infiltration of 
communist forces, and when the United States began secretly to bomb parts of 



Turner 73 

the area the Cambodian government did not object. Finally, in early 1970, the 
United States and South Vietnam sent a large combined military force into the 
area, destroying communist soldiers and arms caches found in their path. 
Although the new government of Prime Minister Lon Nol appeared at least to 
acquiesce in the intervention, the operation was justified by lawyers on the theory 
that Cambodia had a legal duty to prevent its territory from being used for acts 
of aggression against its neighbor, and South Vietnam had a right to defend itself 
against such attacks even though they were not ordered or facilitated by the 
Cambodian government. 

The legal reasoning was sound. A fundamental restriction on traditional views 
of "sovereignty" is contained in the duty imposed by international law upon 
every State not to permit its subjects or territory to be used to violate the rights 
of other States. As Professor Oppenheim explains: 

The duty of every State itself to abstain, and to prevent its agents and, in certain 
cases, subjects, from committing any act which constitutes a violation of another 
State's independence or territorial or personal supremacy is correlative to the 
corresponding right possessed by other States. It is impossible to enumerate all such 
actions as might constitute a violation of this duty. But it is of value to give some 
illustrative examples. Thus, in the absence of treaty provisions to the contrary, a 
state is not allowed to interfere in the management of their internal or international 
affairs, nor to prevent them from doing or to compel them to do certain acts 
in their domestic relations or international intercourse. Further, in the interest 
of the territorial supremacy of other States, a State is not allowed to send its 
troops, its men-of-war, or its police forces into or through foreign territory, 
or to exercise an act of administration or jurisdiction on foreign territory, 
without permission. . . . 

Independence is not unlimited liberty for a State to do what it likes without any 
restriction whatever. The mere fact that a State is a member of the Family of 
Nations restricts its liberty of action with regard to other States, because it is bound 
not to intervene in the affairs of other States. 102 

Later in the same volume Oppenheim writes: 

The duty of a State to prevent the commission within its territory of acts injurious 
to foreign States does not imply an obligation to suppress all such conduct on the 
part of private persons as is inimical to or critical of the regime or policy of a foreign 
State. Thus there is no duty to suppress revolutionary propaganda on the part of 
private persons directed against a foreign Government. So long as International 
Law provides no remedy against abuses of governmental power, international 
society cannot be regarded as an institution for the mutual insurance of established 
Governments. On the other hand, States are under a duty to prevent and suppress 
such subversive activity against foreign Governments as assumes the form of armed 
hostile expeditions or attempts to commit common crimes against life or property. 
Moreover, while subversive activities against foreign States on the part of private 
persons do not in principle engage the international responsibility of a State, such 
activities when emanating direcdy from the Government itself or indirecdy from 



74 Legal & Moral Constraints on Low-Intensity Conflict 

organisations receiving from it financial or other assistance or closely associated 
with it by virtue of the constitution of the State concerned, amount to a breach 
of International Law. 

Even Professor Sorensen seems to acknowledge the right of a State to use force 
on the territory of a non-aggressive neighbor under certain narrow circumstances: 

Forcible measures can exceptionally be taken on foreign territory when forces of 
nature in that territory cause a natural catastrophe in the neighboring State, for 
example, floods or fires across the border. Here the affected States can use force 
only when the action of the local authorities proves inadequate and does not 
succeed in containing the danger. 

Consider his reasoning. It is difficult to see why this "defensive" right would 
apply when a neighboring State failed to control an "act of God" but would not 
apply when it acquiesced in a violation of its territorial integrity by a third State 
which engaged in armed aggression against a neighbor. The harm caused by such 
armed intruders might even be greater than that posed by a fire, and the host 
State's legal duty to act would seem much clearer. 

Conceptually, one may question why a State has a right to take military action 
on the territory of another sovereign State that has not itself acted for the purpose 
of harming the first State. Ultimately, the answer probably lies in balancing competing 
sovereign interests. In the case of the 1970 intervention in Cambodia, for example, 
it is clear that Cambodia had a sovereign right to prohibit foreigners from conducting 
military activities in or from bases inside its territory (or in any other way infringing 
upon its territorial integrity). But the Republic ofVietnam also had a sovereign right 
not to be subjected to armed attacks emanating from Cambodian territory. When 
forces from the Democratic Republic ofVietnam and anti-government guerrilla 
fighters from the Republic ofVietnam set up bases inside Cambodia, the Phnom 
Penh government had both a legal right to require them to leave and a corresponding 
legal duty to keep its territory from being used to launch armed attacks against its 
neighbor. Whether one regards Cambodia's failure to prevent its territory from being 
used as a base for aggression as an act of negligence or as evidence of the reality that 
the Phnom Penh government no longer was in actual control of this portion of its 
territory, the Government of Cambodia was clearly in breach of its duty to its 
neighbor and South Vietnam had a right to use necessary and proportional force to 
defend its sovereignty against the ongoing armed attacks. 

Anticipatory Self-Defense 

One of the most difficult problems facing modern international law is the 
extent to which measures of "self-defense" may be taken prior to the actual 
commencement of armed aggression by a hostile State. Professor Chen argues: 



Turner 75 

In a developing process of coercion there may be a culminating point that creates 
reasonable expectations on the part of a target State that an immediate military 
response is indispensable (that is, necessary) to the protection of its own existence — 
to safeguard its important bases of power from destruction. Because of the 
immediate danger of destruction, the common interest in authorizing self-defense 
in the form of a proportionate military response has long been recognized. Law 
cannot reasonably ask and expect a target State to wait like a sitting duck to see its 
own destruction in the face of such danger. 

He continues: 

A focal point of contention in applying Article 51 of the Charter relates to the 
wording, "an armed attack.'* Does it mean that self-defense must always wait for 
an actual armed attack? Or do certain circumstances warrant what is known as 
"anticipatory" self-defense? The question is not a matter for mere academic 
exercise but a practical matter of grave concern, one of common interest and 
human survival in the nuclear age. The U.S. quarantine of Cuba during the missile 
crisis in October 1962 and Israel's destruction of an Iraqi nuclear reactor in 1981 
both raised this vital question. 

Two divergent views exist. The first takes a textualist view in stressing that "armed 
attack" means "only if armed attack," and unless and until there is an actual armed 
attack or process of attack, the target State cannot respond militarily in self-defense 
even in the face of "imminent danger." The second view holds that the U.N. 
Charter is not a suicide pact and that the target State cannot be expected to be a 
sitting duck awaiting its own destruction in this nuclear age even if a process of 
attack has not begun. It adds that Article 51 was designed to reaffirm, not to curtail, 
the customary right of self-defense. Recent State practice would appear to support 
the latter view, although many disagree. 

This problem is particularly apparent when hostilities are likely to involve 
nuclear, bacteriological, biological, or other so-called "weapons of mass destruc- 
tion." Must a State wait until an actual attack takes place — an attack which might 
wipe out in moments a large part of its population and leave it incapable of 
mounting a meaningful defense of its territory — before it may lawfully come to 
its own defense? 

Admittedly, this is a very troublesome doctrine, for if States are permitted to 
attack their neighbors pursuant to a subjective belief that they might soon be 
themselves attacked it is difficult to see how international peace can be sustained. 
Indeed, modern scholarship on the origins of World War I confirms this risk. It 
now appears that Germany intentionally sought to provoke Russia to mobilize 
defensively so that a subsequent German invasion could be "justified" as a 
defensive response to Russian "aggression" — a strategy designed to persuade 
Great Britain to remain neutral. 

At what point may a State lawfully take "defensive" measures in response to 
a military buildup on its borders or other evidence of an impending attack? 
Professor Henkin, a critic of the theory of "anticipatory self-defense" who 



76 Legal & Moral Constraints on Low-Intensity Conflict 

believes Article 51 of the Charter to be quite narrow in scope, suggests that 
"[i]n all probability, then, only an actual take-off by Soviet planes or missiles 
would cause the United States to strike, and in that case the United States is not 
'anticipating' an armed attack, for the attack would have begun." But is this 
true? After all, for decades during the Cold War nuclear armed bombers would 
routinely "take-off' from Soviet bases and fly toward the United States, only to 
be diverted at a point short of U.S. territory. American B-47 and B-52 aircraft 
flew comparable patterns toward the Soviet Union. Would each such "take-off" 
constitute "an armed attack" as Professor Henkin seems to suggest? One would 
hardly think so. 

Professor Sorensen denies any right of States to use force in anticipatory 
self-defense, but a few pages later argues: 

[I] fan aircraft penetrates the airspace of another State and does not obey the orders 
of the local authorities to land, and either refuses to identify itself, or there are 
other obstacles to establishing its non-military and peaceful character, force can be 
employed against the aircraft, and it may even be shot down. For in the 
circumstances described the State may have reason to fear that the aircraft has an 
offensive or at least unfriendly purpose, and in view of contemporary developments 
in the technology of mass destruction, the State cannot be expected to tolerate, 
apart from treaty obligations, the unauthorized presence of unidentified or foreign 
military aircraft over its land or sea territory and expose itself to the danger of an 
attack. . . . 

While there is certainly a difference between the two situations — the aircraft 
in Sorensen's "exception" was in violation of the airspace of the second State — its 
conduct can hardly by any reasonable definition be characterized as a clear "armed 
attack" as Sorensen asserts the Charter requires for defensive action. In reality, 
Professor Sorensen appears to recognize that the nature of modern weapons of 
mass destruction does justify some type of "anticipatory self-defense." Indeed, 
he makes the modern case eloquently later in his book when he writes: 

Contemporary developments in the technology of war, in particular, the existence 
of thermo-nuclear weapons and the speed with which they can be used against an 
adversary, raise the delicate problem of the rights of States that are in danger of 
armed attack. Today, when the long-range missiles with nuclear warheads are able 
to devastate whole regions and countries, the difference between actual and 
imminent attack becomes negligible. 

Whether anticipatory measures of defensive force are justified as a moral matter 
is a very subjective issue. If a peaceful State obtains reliable information that a 
neighbor has made a decision to attack, and if that neighbor takes measures to 
set the stage for an attack, and if the nature of the weapons or the correlation of 
forces is such that such an attack would likely preclude serious defensive measures, 



Turner 77 

then in moral terms it would be rather easy to justify a pre-emptive or "an- 
ticipatory" use of force to protect the target of the planned aggression. The 
difficulty is that the world community may not be cognizant of the intelligence 
information which justified the action; and a general rule permitting States to 
attack their neighbors if they subjectively believe they are about to be attacked 
would open the door for a wide range of aggressive actions disguised as 
"anticipatory" self-defense. Saddam Hussein might even signal Kuwait privately 
that he was contemplating invading his tiny neighbor, and if Kuwait responded 
by sending more forces toward the border Saddam might present photographs 
of this "buildup" to justify his measures of "anticipatory self-defense" to the 
Security Council. 

It would not be difficult to establish meaningful constraints upon a doctrine 
of anticipatory self-defense if all States could be expected to act in good faith; 
but were that the case Article 2(4) itself would likely solve all use of force 
problems. If a State has overwhelming evidence that it is about to become the 
victim of an imminent armed attack — especially if the correlation of forces or 
the existence of weapons of mass destruction in the potential aggressor's inven- 
tory might make meaningful defense impossible if the initial attack succeeded — it 
is not unreasonable to permit the probable victim to respond preemptively. 

The so-called "Caroline test" is traditionally associated with the doctrine of 
self-defense, but a careful examination of the situation suggests that it might 
arguably more properly be viewed as a test for anticipatory self-defense. The 
incident arose in 1837, during a rebellion in Canada. A group of insurgents gained 
control of Navy Island on the Niagara River and they chartered an American 
vessel, the Caroline, to carry arms and supplies from the United States. A Canadian 
militia force secretly crossed to the American side of the river and seized the 
American boat, and in the process two American citizens were killed. The 
Canadian militiamen set the steamer afire and cut it adrift. The currents swept it 
down river and over the Niagara Falls. The United States objected to this 
violation of American territory, and ultimately the incident led to an exchange 
of views between U.S. Secretary of State Daniel Webster and British Foreign 
Minister Fox. Webster argued that there must be shown "a necessity of self- 
defence, instant, overwhelming, leaving no choice of means and no moment for 
deliberation;" and the defensive action must involve "nothing unreasonable or 
excessive, since the act justified by the necessity of self-defence must be limited 
by that necessity and kept clearly within it." The Caroline test was applied by 
the Nuremberg tribunal in rejecting a German contention that it was "compelled 

to attack Norway to forestall an allied invasion, and her action was therefore 

iir 
preventative." This was in reality a pre-Charter argument of a right of 

anticipatory self-defense. 

One point is clear: the proliferation of weapons of mass destruction and 

effective delivery systems will make the doctrine of anticipatory self-defense even 



78 Legal & Moral Constraints on Low-Intensity Conflict 

more important in the coming years. If the United States or one of its allies learns, 
for example, that a radical regime is planning to launch a nuclear, biological, or 
bacteriological warfare attack against a major population center, it can hardly be 
expected to sit quiedy back and await such imminent devastation on the theory 
that an actual "attack" must precede any measures of forceful self-defense. 

Humanitarian Intervention 

Some scholars contend that it is permissible under international law for one 
State, or a group of States acting collectively, to intervene in another State for 
the purpose of preventing or stopping conduct which "shocks the conscience" 
of mankind, such as widespread murder or torture of innocent people. 
Oppenheim writes: 

There is general agreement that, by virtue of its personal and territorial supremacy, 
a State can treat its own nationals according to discretion. But there is a substantial 
body of opinion and of practice in support of the view that there are limits to that 
discretion and that when a State renders itself guilty of cruelties against and 
persecution of its nationals, in such a way as to deny their fundamental human 
rights and to shock the conscience of mankind, intervention in the interest of 
humanity is legally permissible. . . . The fact that, when resorted to by individual 
States, it may be — and has been — abused for selfish purposes tended to weaken its 
standing as a rule of International Law. That objection does not apply to collective 
intervention. The Charter of the United Nations, in recognising the promotion 
of respect for fundamental human rights and freedoms as one of the principal 
objects of the Organisation, marks a further step in the direction of elevating the 
principle of humanitarian intervention to a basic rule of organised international 

* 120 

society. 

Oppenheim concluded that the Charter strengthened the case for a legal norm 

151 

permitting humanitarian intervention. It should be noted that many scholars take 
a quite different position, arguing that Article 2(4) of the Charter outlawed an 
established preexisting right of humanitarian intervention. For example, Professor 
Serensen concludes: "The prohibition of armed intervention applies equally to 
humanitarian intervention." Like many writers, he seems somewhat less con- 
cerned with multilateral intervention and concludes that the Security Council 
decisions on the Congo (1960) "give support to the view that there is room for 
collective intervention on behalf of the United Nations when internal disorders in 

■•123 

a State assume the proportions of a threat to international peace and security." 

The American Law Institute, in its Restatement (Third) on Foreign Relations 
Law, provides: 

Humanitarian intervention to rescue victims or suppress human rights violations. It is 
increasingly accepted that a State may take steps to rescue victims or potential 
victims in an action stricdy limited to that purpose and not likely to involve 



Turner 79 

disproportionate destruction of life or property in the State where the rescue takes 
place. Whether a State may intervene with military force in the territory of another 
State without its consent, not to rescue the victims but to prevent or terminate 
human rights violations, is not agreed or authoritatively determined. Such inter- 
vention might be acceptable if taken pursuant to resolution of a United Nations 
body or of a regional organization such as the Organization of American States. 

Intervention On The High Seas 

International law recognizes universal criminal jurisdiction over certain 
heinous crimes and expressly gives warships authority to board, inspect, and if 
warranted, ultimately use force against foreign ships (other than warships) 
thought to be engaged in the slave trade or piracy. But note carefully that the 
definition of piracy in applicable treaties, (as vessels engaged in international 
terrorism on behalf of sovereign States) may well not fall within the definition. 
There is no general right to board or seize foreign ships on the high seas, but a 
ship engaged in the use of armed force against foreign States or their citizens may 
be the object of necessary and proportional defensive measures. 

Draft Guidelines for Using Force 
in Low-Intensity Situations 

The prohibition against interfering with the political independence or ter- 
ritorial integrity of other States is a fundamental rule of international law reflecting 
the modern law of sovereignty. The United States should not engage in such 
conduct except when essential to defend its legal rights. 

As a general principle, it is suggested that military force may be used (or 
threatened) pursuant to these guidelines: 

(1) There must be a breach of State responsibility on the part of the State against 
whose territory the use of force is being contemplated, e.g.: 

a. The terrorist attack or other prior use of armed force was a conse- 
quence of the actions of the foreign Government or its agents (e.g., the attack 
involved members of the State military force or was significantly organized 
and funded by the State); or 

b. The State from which the wrongful use of force was mounted must 
have known, or must have been in a position where it reasonably should 
have known, that the attack(s) were being planned; and it must have failed 
to take reasonable steps to prevent the attack(s); and 

(2) Peaceful means of resolving the dispute must have been exhausted (or it must 
be clear that they would not succeed); and 

(3) The level of force used must be limited to that necessary to bring an end to 
the unlawful threat to the State; and 



80 Legal & Moral Constraints on Low-Intensity Conflict 

(4) Reasonable efforts must be taken to avoid any unnecessary interference in the 
internal affairs of other States; and 

(5) Consistent with (4), all intervention in the second State must be brought to 
an end at the earliest possible date. 

Closing Thoughts: 
A Critical Era of Challenge and Change 

As we move further into the 1990s, it is imperative that policymakers 
recognize the critical nature of this moment in history. Containment worked, 
the heart of the Leninist empire has ceased beating, and it is quite possible that 
the United States will stand alone as a world superpower for the foreseeable 
future. Indeed, many observers believe it is a certainty that the United States will 
remain the world's only "superpower" for coming years. 

Such thinking ignores the possibility of new alliances — most of the modern 
world is run by individuals raised on balance-of-power strategic thinking — as 
well as the probable diminution of U.S. strength that a few years of "peacetime" 
cuts will bring. Whether major challenges arise to "balance" American power 
will in large part be determined by world perceptions of American ambition and 
behavior. A benevolent America, cast in the tone of the post World War II gentle 
giant that rebuilt Europe and Japan while dedicating its nuclear monopoly to 
preserving peace, is likely to be tolerated far longer than an America determined 
to have its way across the board. 

It is therefore imperative to reaffirm the "peace through justice" strategy of 
our founders. The more the U.S. is perceived as reckless and anxious to impose 
unilateral solutions to world problems, the more likely it is to find a growing 
"anti-United States" alliance of necessity growing across both oceans. The most 
fundamental principles of morality demand that the powerful giant resort to force 
with extreme reluctance and only to promote justice and defend essential 
interests. If the United States' role as world giant is to survive unchallenged, our 
leaders must by words and conduct assure friends and foes alike of our firm 
commitment to justice. 

I share the view held by many others — a view that dates back at least as far 
as Immanuel Kant's Perpetual Peace — that democratic states tend to be less 
aggressive in their nature than authoritarian or totalitarian States. I support 
assistance to Russia and the former Soviet empire not only because it is just and 
right from a humanitarian point of view, but also because the long-term prospects 
for world peace will be greatly influenced by the direction these important States 
take in the coming years. 

Much of the democratic progress registered in Eastern Europe in the past few 
years is premised upon a perception of American fairness and good will. If 
America chooses to become the world's "Big Brother," promoting its narrow 



Turner 81 

self-interest with the weight of its nuclear missiles, the predictable reaction in 
Eastern Europe and other fledgling democracies may well include the discrediting 
of the system of government for which the United States stands. If we — even 
for the best of motives — signal to the world that we intend to intimidate our 
way to success, then we would be wise to stop talking about defense cuts. Just 
as our free market makes adjustments when demand exceeds supply, we can 
expect the world political system to seek to compensate for an American-domi- 
nated imbalance which is perceived as posing long-term threats to other States. 

Our resources are limited, and we could not do for the former Soviet Union 
what we did for Japan in the late 1940s — even if we wished to attempt such a 
feat. However, the world's perception of our goals and temperament will be as 
important as our foreign aid. Now is the time not only to take the moral high 
ground, but also to make sure that the moral foundations of our policies are 
carefully understood around the world. 

The 1990-91 Gulf crisis provided hope that the essentially stillborn U.N. 
Security Council might be rejuvenated and permitted to play a central role in 
world peacekeeping. I believe it is in our interest to promote that end. The dream 
of the Charter is not "balance of power" politics, but rather the politics of peace. 
Every potential victim of aggression should be able to expect that the entire world 
community is prepared to come to its defense in the event of armed aggression. 
No State, not even the United States of America, will ever be so powerful, or 
so foolish, that it would commit armed aggression against its neighbors in the 
face of such odds. If collective security can work, there will be no further need 
for balance-of-power alliances, and a peaceful United States might be permitted 
to continue on its way without the need for arms races or new grand alliances. 

No nation is likely to pose a direct military threat to U.S. security in the 
foreseeable future. If we can maintain a reasonable amount of credible power, 
and couple it with world-wide perceptions that America is just and honorable, 
our ability to influence world events will be enhanced dramatically. Under such 
circumstances, international law could expand dramatically — providing in the 
process not only for multilateral responses to low-intensity aggression and 
terrorism but even for controlling international narcotics trafficking. 

The future, in short, is bright and extremely promising. Opportunities for 
positive developments in the law abound. But the future is uncertain, and it will 
be determined by a large degree by how other States view the United States. 
Policymakers must keep this fact in the forefront of their minds. Even relatively 
minor departures from the agreed norms of behavior might well be mis- 
understood at this point. We will not be the only actor shaping the world's new 
future, but we may well be the most important. Let us not abandon those rules 
of fairness and honor which once set the United States apart as a beacon for lovers 
of liberty around the world. And to that end let us redouble our efforts to keep 
our own people and the world community informed about the rationale behind 



82 Legal & Moral Constraints on Low-Intensity Conflict 

our conduct — because there will still be forces around the globe anxious to draw 
the wrong conclusions and to share their doubts with others. The cause of world 
freedom and democracy has never been more promising. Its success will depend 
in part upon how successful we are in living up to our potential as a nation 
dedicated to peace and justice. 

Notes 

♦Professor Turner is Associate Director, Center for National Security Law at the University of Virginia Law 
School. 

1. 12 WRITINGS OF THOMAS JEFFERSON 418 (Mem. ed. 1904) [hereinafter WRITINGS OF THOMAS 
JEFFERSON]. In 1963, former Secretary of State Dean Acheson told the American Society of International 
Law in connection with the Cuban Missile Crisis: "In my estimation, however, the quarantine is not a legal 
issue or an issue of international law as these terms should be understood. ... [L] aw simply does not deal with 
such questions of ultimate power. . . . The survival of States is not a matter of law." at the 57th annual meeting 
of the American Society of Law (April 25-27, 1963) in Proc. Am. Soc'y Intl L., 1963 at 13-14.. 

2. "In the last resort almost the whole of duties of States are subordinated to the right of self-preservation." 
HALL, INTERNATIONAL LAW 322 (8th ed. 1924). 

3. 8 WRITINGS OF THOMAS JEFFERSON 12. 

4. 8 id. at 11. 

5. 3 id. at 228-29. 

6. 8 id. at 219. 

7. 15 id. at 95. 

8. 15 id. at 478. 

9. U.N. CHARTER art. 2, para. 1. 

10. For example, the five permanent members of the U.N. Security Council are invested with veto powers 
not shared with other States. U.N. CHARTER art. 27, para. 3. 

11. For a brief statement of the writer's views on this issue, see Turner, Verdugo II Reconsidered: The Law 
and Policy of Rendition, 13 (6-8) A.B.A. Law and National Security Intelligence Report 3 (Summer 1991). 

12. 91 CONG. REC. 166 (1945). 

13. By this I mean that we should not allow an ineffective legal regime to guarantee victory to lawbreakers. 
Even were we to decide to resort to the "rules of the jungle" in deciding to use force, it would be imperative 
that we continue to abide by the fundamental rules of civilized moral conduct which regulate the manner in 
which we use force. Thus, the fact that Iraqi forces murder children and rape civilians would not justify such 
abuses by American forces. 

14. See Turner, International Law, the Reagan Doctrine, and World Peace: Going Back to the Future, Wash. Q. 
119 (Autumn 1988). 

15. This approach is not without risks. Some legal scholars will perhaps argue that the United States loses 
its right to act in self-defense once the Security Council takes up the issue, but the Charter text says self-defense 
is permissible "until the Security Council has taken measures necessary to maintain international peace and 
security." I would argue that if the Security Council's measures do not accomplish their stated objective, or if 
ultimate Security Council action is blocked by a veto, then the Council will have not "taken measures necessary 
to maintain international peace and security" and the right of self-defense is not vitiated. 

16. Sec text accompanying n. 1. 

17. FRIEDMAN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW 197 (1964). 

18. See, e.g., Department of Defense, Terrorist Group Profiles 3 (1988). 

19. See text accompanying n. 12. 

20. Much of this discussion is premised upon the idea that the "armed attack" language of Article 51 of 
the Charter narrows the traditional right of self-defense and precludes a forceful response to certain types of 
low-intensity aggression. In reality, I believe that analysis to be inaccurate. If I am correct, it should be 
unnecessary to even raise the equity argument. However, there is language in the Paramilitary Activities Case 
(Nicaragua v. U.S.) that supports a more narrow interpretation of Article 51, and it is with that in mind that I 
raise this alternative approach. The doctrine of stare decisis does not apply to the ICJ decisions, and I shall not 
therefore go into a detailed critique of this case. My views are set forth briefly in Turner, Peace and the World 
Court: A Comment on the Paramilitary Activities Case, 20 Vand. J. Transnat'l L. (1987). 



Turner 83 

21. The writer has argued elsewhere chat some efforts by Congress to mandate a greater legislative role 
in foreign affairs are of dubious constitutionality. See, e.g., TURNER, REPEALING THE WAR POWERS 
RESOLUTION: RESTORING THE RULE OF LAW IN U.S. FOREIGN POLICY (1991). 

22. See text accompanying n. 5. 

23. When the United States sought to justify' its attack on North Vietnam as a "reprisal" rather than as 
collective self-defense against ongoing North Vietnamese armed aggression, it played into the hands of its critics 
within the legal community. Similarly, relatively minor technical errors in a 1981 U.S. White Paper on 
Nicaraguan aggression against £1 Salvador were used to discredit the entire document not only within the 
United States, but ultimately by the majority of the World Court. See TURNER, supra n. 20, at 53, 75-76. 

24. EASTWOOD & KEETON, THE AUSTINIAN THEORIES OF LAW AND SOVEREIGNTY 45 (1929) 
[hereinafter EASTWOOD & KEETON]. For a detailed discussion of sovereignty, see MERRIMAN, HISTORY 
OF THE THEORY OF SOVEREIGNTY SINCE ROUSSEAU (1900). 

25. The French souverain ("supreme, paramount; final, without appeal") is derived from the Latin 
SUPER ANUS. Concise Oxford French Dictionary 778 (1963). 

26. 1 OPPENHEIM, INTERNATIONAL LAW: A TREATISE 116 (7th ed. 1948) [hereinafter OPPEN- 
HEIM]. 

27. Id. 

28. EASTWOOD & KEETON, supra n. 24, at 55. See also COHEN, RECENT THEORIES OF 
SOVEREIGNTY 1 (1937) [hereinafter COHEN]. 

29. EASTWOOD & KEETON, supra n. 24, at 55. 

30. Id. 

31. 1 OPPENHEIM, supra n. 26, at 116-117. 

32. EASTWOOD & KEETON, supra n. 24, at 56-57. 

33. Id. at 57. 

34. Id. at 58-59. 

35. Id. at 60. 

36. Id. 

37. OPPENHEIM, supra n. 26, at 117. 

38. EASTWOOD & KEETON, supra n. 24, at 70. 

39. OPPENHEIM, supra n. 26, at 1 18. 

40. ESMEIN, ELEMENTS DE DROIT CONSTTWIONNEL (6th ed. 1914). 

41. FENWICK, INTERNATIONAL LAW 125 (4th ed. 1965). 

42. Id. at 126. 

43. GIERKE, POLITICAL THEORIES OF THE MIDDLE AGES 76 (Maidand trans.), quoted in EAST- 
WOOD & KEETON, supra n. 24, at 42. 

44. EASTWOOD & KEETON, supra n. 24, at 42. 

45. Id. at 43. 

46. Id. 

47. COHEN, supra n. 28, at 1-2. 

48. OPPENHEIM, supra n. 26, at 118-20. 

49. BRIERLY, THE LAW OF NATIONS 16 (6th ed. 1963). 

50. FENWICK, supra n. 41, at 48-49. 

51. Id. at 126. Among other sources cited for this view are LAUTERPACHT, THE FUNCTION OF LAW 
IN THE INTERNATIONAL COMMUNITY (1933); RUSSELL, THEORIES OF INTERNATIONAL RELA- 
TIONS (1936); Gamer, Limitations on National Sovereignty in International Relations, 19 Am. Pol. Science Rev. 1 
(1925); and Coker & Borchard in MERRLAM, A HISTORY OF POLITICAL THEORIES (1935). 

52. Draft Declaration on Rights and Duties of States prepared by the International Law Commission on 
1st Sess. (1949), reprinted in 5 WHITEMAN, DIGEST OF INTERNATIONAL LAW 25-26 (1965) [hereinafter 

Whiteman Digest]. 

53. OPPENHEIM, supra n. 26, at 259. 

54. Id. at 259 n. 5. 

55. 1 SCHWARZENBERGER, INTERNATIONAL LAW 58-59 (1949), quoted in 1 WHITEMAN DIGEST 
261 (1963). 

56. Barcelona Traction Case (Second Phase), 1970 I.C.J. Reports 3, 32 (1970). 

57. Article 53 of the Vienna Convention on the Law of Treaties, May 23, 1969 [hereinafter Vienna 
Convention] defines jus cogens as "a norm accepted and recognized by the international community of States 
as a whole as a norm which no derogation is permitted and which can be modified only by a subsequent norm 
of general international law having the same character." U.N. Doc. A/CONF. 39/27, (1969), 63 Am. J. Int'l 
L. 875 (1969). 

58. See, e.g., LUNG-CHU-CHEN, AN INTRODUCTION TO INTERNATIONAL LAW: A POLICY 
ORIENTED PERSPECTIVE 214 (1989). 



84 Legal & Moral Constraints on Low-Intensity Conflict 

59. 1 PEASLEE, CONSTITUTIONS OF NATIONS 5-7 (2d ed. 1956), quoted in 1 WHITEMAN DIGEST 
233. 

60. 1 WHITEMAN DIGEST, at 234. 

61. McColm, The Comparative Survey of Freedom: 1992, Freedom Review, Jan.-Feb. 1992, at 5. 

62. Id. 

63. JESSUP, A MODERN LAW OF NATIONS 159 (1952). 

64. Id. at 162. 

65. 5 WHITEMAN DIGEST 746-47. 

66. Id. at 740. 

67. The distinction between a retorsion and a reprisal is that the action taken in a retorsion would have 
been lawful even in the absence of the initial wrongful act by the other state (such as denying another state 
landing rights at an airport in the absence of a treaty establishing such a right, or breaking diplomatic relations), 
while a reprisal is lawful only because of the prior violation by the other state (such as violating the same or 
parallel provision of the same treaty). Under the Charter, forceful reprisals are generally regarded as 
impermissible unless justified by Article 51 of the Charter- — in which case they are normally referred to as acts 
of self-defense. 

68. Self-help is a broader term than self-defense and incorporates the latter in addition to retorsion, reprisal 
and intervention. See, e.g., BRIERLY, supra n. 49, at 398. Unlike Brierry, some scholars argue that, under the 
Charter, the only forceful measures of self-help permitted are those classified as self-defense. 

69. OPPENHEIM, supra n. 29, at 265. 

70. U.N. CHARTER Art. 51. 

71. FENWICK, supra n. 41, at 271. 

72. 1928 1 UNITED STATES FOREIGN RELATIONS 91 ; *ealso FENWICK, supra n. 41, at 278; BRIERLY, 
supra n. 49, at 407. 

73. JESSUP, supra n. 63, at 163. 

74. I UNITED STATES FOREIGN RELATIONS 1928 at 36. This position is supported by the writings of 
the late Professor Quincy Wright, a former President of the American Society of International Law, who wrote 
in 1957: "[E]very international obligation not to engage in hostilities carries the qualification, by implication 
if not by express statement, that it does not impair a state's capacity to use armed force ... for necessary 
self-defense, ... or for assisting, if requested, another state in an armed action permissible to the latter." 

Wright, Intervention, 1956, 51 Am. J. Int'l L. 257, 269 (1957). 

75. BRIERLY, supra n. 49, at 409-10. 

76. FENWICK, for example writes: "It is clear, however, that both of the cases contemplated by the Charter 
have in mind self-defense of the most restricted character, since self-defense is limited to armed attacks. ..." 
supra n. 41, at 279. Sorensen presents two reasonable interpretations of the Charter, but sides ultimately with 
the view "that the CHARTER modified the customary right of self-defense." SORENSEN, MANUAL OF 
PUBLIC INTERNATIONAL LAW 765-67 (1968). 

77. LUNG-CHU CHEN, supra n. 58, at 324-26. 

78. SORENSEN, supra n. 76, at 777-78. 

79. HENKIN, HOW NATIONS BEHAVE 141 (2d ed. 1979). 

80. However, Art. 2, para. 6 of the Charter does provide; "The Organization shall ensure that states which 
are not Members of the United Nations act in accordance with these Principles so far as may be necessary for 
the maintenance of international peace and security." This might justify compelling North Korea to comply 
with the Charter; but if the only aggression prohibited by the Charter is that by a "Member" of the organization 
one might question whether North Korea had acted wrongfully. 

81. The Vienna Convention provides in Art. 31 that "A treaty shall be interpreted in good faith in 
accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light 
of its object and purpose." Art. 32 allows "[r]ecourse ... to supplementary means of interpretation, including 
the preparatory work of the treaty," when the procedures set forth in Art. 31 "leaves the meaning ambiguous 
or obscure" or "leads to a result which is manifestly absurd or unreasonable." 

82. BRIERLY, supra n. 49, at 417. 

83. Id. 417-418. 

84. See text accompanying n. 72. 

85. Id. 418-419. 

86. BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 152 (1958). 

87. 12 WHITEMAN DIGEST 62-63. 

88. Id. 737-38. 

89. Senator Vandenberg quoted in id. at 99. 

90. 95 CONG. REC. 8892 (1949). 

91. 12 WHITEMAN DIGEST 84-85. 

92. 5 id. at 281. 



Turner 85 

93. 12 id. at 23. 

94. 2 U.N. SCOR (147th and 248th mtg.) at 1 120-1 121 (1947), $m<>*</ in, Afi/i'tory and Paramilitary Activities 
(Nicaragua v. U.S.), 1986 I.C.J, at 335 (Schwebel, J., dissenting). 

95. 12 WHITEMAN DIGEST 96. 

96. "Measures taken by Members in the exercise of this right of self-defense shall be immediately reported 
to the Security Council," U.N. CHARTER Art. 51. 

97. OPPENHEIM, supra n. 26 at 276. 

98. See, e.g., S0RENSEN, supra n. 76, at 764. 

99. See infra n. 117-19 and accompanying text. 

100. BRIERLY, supra n. 49, at 405. 

101. FENWICK, supra n. 41, at 275; OPPENHEIM, supra n. 26, at 269. 

102. OPPENHEIM, supra n. 26, at 256-57. 

103. Id. at 259-62. 

104. S0RENSEN, supra n. 76, at 775. 

105. In the absence of clear negligence, there is no general duty for States to insure that natural 
catastrophes likes fires and floods which begin in their territory do not spread across frontiers into 
neighboring States. 

106. One of the fundamental elements for establishing statehood is that a government exercise control over 
the territory it claims to govern. 

107. LUNG-CHU CHEN, supra n. 58, at 321. 

108. Id. at 322. 

109. "This was the crux of German policy in the final days of the crisis — to delay German war preparations 
until Russia had announced a general mobilization, and then to blame Russia for starting the war that Germany 
now sought. The purpose was both to persuade Britain to remain neutral, since it was understood that British 
policy would never back Russian aggression, and, more crucially, to unify the German People." Glynn, The 
Sarajevo Fallacy — The Historical and Intellectual Origins of Arms Control Technology, The National Interest 23 (Fall 
1987). 

110. HENKIN, supra n. 79, at 141. 

111. Id. at 142. 

112. "[A]ny preventative, anticipatory or pre-emptive use of force prior to the occurrence of an armed 
attack cannot be regarded as action in self-defense." S0RENSEN, supra n. 76, at 767. 

113. Id. at 773-74. This exception does not apply in the case of easily identifiable commercial aircraft. 

114. After all, a mere trespass would not normally justify the use of military force against a foreign 
national or vessel. 

115. S0RENSEN, supra n. 76, at 778. Professor Sorensen nevertheless reaffirms his view that the Charter 
outlaws anticipatory self-defense, and — other than acknowledging a State's right to complain to an international 
institution that it is about to be destroyed — concludes that the problem may be "insoluble." 

116. For a discussion of this case, see OPPENHEIM, supra n. 26, at 268-69. 

117. BRIERLY, supra n. 49, at 406; LUNG-CHU CHEN, supra n. 58, at 321. 

118. Quoted in BISHOP, INTERNATIONAL LAW 918 (3d ed. 1962). 

119. On humanitarian intervention, see Lillich, Humanitarian Intervention, in MOORE, LAW AND CIVIL 
WAR IN THE MODERN WORLD 229 (1974); FENWICK, supra n. 41, at 287-89; BROWNLIE, INTERNA- 
TIONAL LAW AND THE USE OF FORCE BY STATES at 338-42 (1963). 

120. 1 OPPENHEIM, supra n. 26, at 280. 

121. Prior to the seventh (1948) edition of this work, Oppenheim expressed doubt "whether there is really 
a rule of the Law of Nations, which admits such intervention. . . ." Id. at 279 n. 2. 

122. SORENSEN, supra n. 76, at 758. 

123. Id. at 759. 

124. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS OF LAW OF THE UNITED STATES 
§703, Comment e. 

125. This list was quickly drafted as a vehicle for discussion, and is not presented as a finished policy 
statement. 

126. I use the word "containment" here despite the fact that the "roll back" nature of some elements in 
recent U.S. foreign policy (i.e., the "Reagan Doctrine" as applied to Afghanistan, Cambodia, and arguably 
even Angola and Nicaragua) differed from the traditional reactive policy of Kennan, NSC-68, and most who 
came after them. In my view, a critical factor in the collapse of the Soviet Union was the firm foreign and 
defense policy of the Reagan Administration. There is growing evidence, for example, that the Strategic Defense 
Initiative was perceived as such a potential threat by Soviet leaders that it left them feeling hopeless in the 
long-term. The "Reagan Doctrine" served both to divert important Soviet resources from domestic problems 
and to give Moscow a "stake in the game" of international law. 



86 Legal & Moral Constraints on Low-Intensity Conflict 

127. The greatest short-term military danger is likely to be from a radical regime like Iraq, Iran, or Libya, 
which if armed with weapons of mass destruction could cause a great deal of damage to the United States. 
Most of the short-term threats to the United States will be likely to come on the economic front. 



Chapter IV 

Low-Intensity Conflict and State Sovereignty: 
A Philosophical Analysis 



by 
Fernando R. Teson* 



I. Introduction 

Throughout the history of philosophy, the morality of war has been the 
subject of intense concern and debate. I suspect that the reason for the 
philosophers' preoccupation with war is that there is something terrible, 
awesome, final, and conclusive about the physical combat of nation against 
nation, of army against army. In a very primal way, the frightening reality of 
war tests the limits of reason, and thus of civilization itself. It is not surprising, 
therefore, that no less an eminent thinker than Immanuel Kant, the champion 
of rationalism, called war "the judgment of God," where the outcome 
determines the side on which justice lies. This seemingly irrational trait of 
war is, I think, the reason philosophers have bravely tried to analyze and 
understand it with the tools of rational moral thinking, to domesticate it, as 
it were. The attempt to set moral limits to violence, and to war in particular, 
illustrates one of the attributes of enlightened civilization: the recurrent 
attempt to substitute civilized society based on principled reason for the 
lawless state of nature, where force and power reign supreme. 

In contrast, the vast assortment of operations that have been lumped together 

under the label "low-intensity conflict" seem to have been excluded from the 

•I 

domain of moral analysis. There are at least two reasons for this omission. 
First, unlike open war, low-intensity operations usually do not cause as much 
damage and suffering. Second, and most importantly, there is a substantial 
difference between the common perception of the morality of each: except 
for the pacifists, conventional war (rightly or wrongly) has traditionally 
exhibited an aura of courage, dignity, chivalry, and decency. To many, having 
fought in a just war (e.g., with the Allies in World War II) is the mark of the 
virtuous citizen who is ready to defend his country (and other people's 
countries) against enemies, and (perhaps) to uphold good against evil. 

In contrast, low-intensity operations have been thought of as secretive, sleazy, 
sneaky, and not particularly demonstrative of courage or similar virtues. For one 



88 Legal & Moral Constraints on Low-Intensity Conflict 

thing, low-intensity operations are the domain of specialists (spies, commando 
forces, hit squads, and so on), and therefore it is harder to associate those 
operations with a general, grass-roots, patriotic effort to defend one's just 
institutions and defeat the enemy who threatens them. In addition, low-intensity 
operations are often covert and without warning. And last but not least, they are 
often aimed at non-military targets. 

Some people might refuse to explore the moral justification of low-intensity 
operations on the grounds that they are a necessary evil — strategically required 
sometimes, perhaps, yet incapable of being justified with rational moral argu- 
ments. Yet, unless one is an extreme pacifist, surely it is not possible to take the 
position that all low-intensity operations are morally unjustified. (If one is an 
extreme pacifist, low-intensity operations are always unjustified for the same 
reasons war is.) The question then becomes: if we accept that sometimes war is 
justified, are there any additional arguments that bar low-intensity operations in 
peacetime? Some may argue that such additional arguments are related to State 
sovereignty. When the reasons that justify war apply, then most bets are off with 
regard to State sovereignty. But if the reasons to wage open war do not apply, 
then State sovereignty re-emerges in full power, and low-intensity operations 
are prohibited out of respect for the sovereignty of the target State. Put differently: 
if the reasons that justify war obtain, then a government has a right to wage war; 
if they do not, then no infringement of the sovereignty of another State is justified. 
On this view, State sovereignty is an all-or-nothing concept, which only collapses 
when the target State is on the wrong side of a just war. 

In this paper I explore the issue of the justification of low-intensity operations 
in the light of the principle of State sovereignty. I reject the premise that State 
sovereignty is an intrinsic value, or an all-or-nothing concept. State sovereignty 
is instead an instrumental value and therefore, moral reasons have to be supplied 
in its support. It follows that whatever moral reasons are given to justify 
low-intensity operations, they must compete against the moral reasons that 
support the respect for State sovereignty. 

I argue that a low-intensity operation is morally justified when it meets the 
following conditions: 

1) The ends of the operation are morally justified goals under just war 
theory. A war has a just aim when it is waged in the defense of persons and, 
derivatively, of just institutions. 

2) The government contemplating the operation is a legitimate govern- 
ment. 



3) Either the target State or the target government are illegitimate. 



Teson 89 

4) The operation does not otherwise violate human rights. 

5) The operation is necessary and proportionate. 

6) The modus operandi is not such that would undermine the flourishing of 
civic and personal virtues that a liberal democracy must encourage. 

The central ideas are embodied in conditions (1) and (3). Whether or not a 
government should engage in a particular low-intensity operation depends 
absolutely upon the justice of the cause, and relatively upon the legitimacy of 
the social contract in the target State. Only legitimate governments have moral 
standing to conduct these operations (condition (2)); but they may not proceed 
when the target State is fully legitimate (in the sense explained below.) Even 
when the target State is not legitimate, those performing the low-intensity 
operation must make every effort to respect the individual rights of the persons 
that reside in the State. Condition (5) (necessity and proportionality) is a feature 
of the conduct of war generally. Finally, even if all the foregoing conditions are 
met, some modi operandi may be so odious that they should be avoided because 
performing them would undermine the civic and individual virtues that a liberal 
democracy must cultivate — in other words, those methods may have a highly 
corrupting effect. Thus, virtue theory provides an important supplement to the 
liberal theory upon which this paper rests. 

II. A Definition of Low-Intensity Conflict 

Before tackling our substantive problem, I would like to narrow the kind of 
low-intensity operations that will be discussed in this paper. Writers have defined 
low-intensity conflict in a noticeably broad way, as including everything short 
of "total" war. The first problem with this broad definition is that limited uses 
of conventional force are best analyzed as part of just war theory. For example, 
some scholars have treated the 1986 U.S. bombing raid of Libya as an instance 
of low-intensity conflict because it was a limited operation short of "total" war. 
Of course, this is a semantic issue. Yet it is best to treat that incident as an instance 
of the use of conventional force by a State against another State, much in the 
way international lawyers treat it. The moral justification of limited conven- 
tional war is no different from the moral justification of war generally, so no 
additional moral analysis is needed. I will not, therefore, include instances of 
limited conventional war (the U.S. operations in Grenada and Panama come also 
to mind) in my analysis. 

The low-intensity operations that pose distinct ethical problems, and those 
with which I am concerned here, are those that do not amount to overt 
conventional war, limited or unlimited. However, even after excluding 



90 Legal & Moral Constraints on Low-Intensity Conflict 

conventional war, the definition of low-intensity conflict is still too broad. 
Different kinds of operations are lumped together in the literature under the 
low-intensity conflict label, yet are very different in ends and means. Examples 
of these are: counter-narcotics; counter- and pro-insurgency; and the targeting 
of individuals such as political leaders. A further element of the definition is that 
all these actions are performed in the territory of another sovereign State, or in 
a territory assimilated to it; and they do not involve the direct commitment of 
troops or other personnel openly wearing uniforms or identifying insignia. All 
these activities have in common that they involve coercive action performed by 
a government in a foreign State, which by definition is a territory in which the 
intruding government has no power, in principle, to exercise such coercion. 

However, that is all these operations have in common. Many operations 
that are lumped together under the label of low-intensity conflict (even 
excluding limited conventional war as I have done) involve substantial 
material differences of moral relevance. There is a big difference between 
aiding the Iraqi population to overthrow Saddam Hussein, and training death 
squads aimed at innocent civilians in El Salvador; between kidnapping a 
suspected drug trafficker in Mexico without waiting for the Mexican courts 
to act, and sending a commando force to liberate Western hostages victimized 
by a fanatic group tolerated by the local government. And the contrasting 
examples can be multiplied. Given this diversity of possible cases, one cannot 
have a principle according to which all coercion short of open war exercised 
in another State's territory is morally impermissible (or permissible.) It will 
depend on the facts. 

III. The Ends of Low-Intensity Conflict 

Low-intensity conflict is a form of international coercion. This coercion may 
involve different degrees of violence. At the very least, low-intensity operations 
involve violation of the sovereignty of another State, that is, of the monopoly of 
coercion that is granted only to that government in that territory by the citizens 
that reside in it, and recognized by international law. And in many other cases, 
low-intensity operations will involve doing actual violence to persons. What 
aims can morally justify such actions? Must a government invoke the national 
interest, or a pressing national interest, or self-defense, or expediency, or the need 
to punish criminals; or is there something else required in the form of justifica- 
tion? People have differed on the answer to this question. 

(a) The Realist Answer 

Realists have long maintained that international behavior can be explained by 
postulating an overriding motivation, which is the same for all international 
actors, and for nation-States in particular: the national interest. For realists, the 



Teson 91 

task of the science of international relations is to study and unveil the complex 
international interactions of different national interests that produce diplomatic 
confrontation (such as war) and cooperation (including treaties, international 

organizations, or, to use modern international relations parlance, "international 

»» N 14 
regimes ). 

Now realism thus defined attempts a descriptive explanation of international 
behavior. Whatever its merits as a thesis of political science (that is, whether or 
not realism adequately describes the causes and effects of international behavior), 
there is prima facie nothing in it that logically entails a moral justification of 
international behavior. The realist can consistently claim that State X performed 
action A because A advanced X's national interest, but that on independent moral 
grounds A was unjustified. He need not claim that an appeal to national interest 
counts as a moral justification for international acts. 

However, many descriptive realists have, almost imperceptibly, slid into a 
normative realist approach, that is, into the view that national interest justifies 
international behavior. This has been done, in my view, in two different, though 
not inconsistent ways. Some realists have adopted a state of nature approach to 
international relations, i.e., the Hobbesian position that nations are always 
potentially at war with each other. On this view, all is fair in war, the only 
measure being one of prudential rationality, that is, that the State should do those 
things that advance its national interest. There is no such thing as transnational 
justice or morality; thus realists are international moral skeptics. Under this 
theory, a government makes an international mistake when it does something 
(e.g., starts a war) believing that the act is in the national interest, when in reality 
it is not. In these cases, the leaders have failed to perceive the real national interest. 

The second path to normative realism is linked to considerations of constitu- 
tional philosophy. Under liberal democratic theory, the government is the agent 
of the people. It is hired by the citizens of the State to serve their interests. A 
consequence of this agency relationship is that significant deviations from this 
purpose (e.g., the government seeking its own self-interest) are grounds for 
criticism and even in extreme situations, for open revolt. These are the terms of 
the vertical social contract, the contract between people and government. This 
contract specifies the government's obligation to govern in the interest of the 
governed. So far so good. 

This job description of the government, however, carries implications for 
international relations. A government does not owe any duty to foreigners, since 
they do not stand in any contractual relationship with it. A government's 
paramount international duty, then, is to perform those actions which will 
maximize the interests of the subjects of the State which it represents. Again, 
limitations to foreign policy are those that are dictated by prudence. For example, 
a government behaving too aggressively might cause other States to retaliate in 
a way that will harm the citizens of the State which it represents. This view is 



92 Legal & Moral Constraints on Low-Intensity Conflict 

appealing because it relies on democratic representation to explain the inter- 
national "state of nature." The world consists of independent nations with 
governments; these governments are agents that represent their citizens; and each 
of them attempts, in a competitive world, to serve the interest of its principals. 
The prudentially correct international action for any State, or group of States, 
can be determined by an analysis of the interests involved and the options open 
to the agents, which could be based on models of collective rational choice or 
game theory. There are no international principles of morality from this 
philosophical perspective. 

From the realist standpoint, for example, the ill-fated, U.S. -supported Bay of 
Pigs invasion was mistaken, not because it violated the principle of sovereignty, 
but because the Kennedy administration underestimated the probability of failure 
and its consequences for the United States. Had the invasion succeeded, there 
would have been no objections whatsoever against it. Thus, this version of 
normative realism, based on the agency relationship of government to subjects, 
reaches the same conclusion as the "state of nature'* version of realism: inter- 
national acts may only be evaluated from the standpoint of national interest. 

(b) Extreme and Moderate Realism 

Under either version of normative realism, international acts, and hence low-in- 
tensity operations, are justified if they serve the national interest. But a further 
distinction must be made between extreme realism and moderate realism. According 
to extreme realism, low-intensity operations are justified whenever they advance 
the national interest. Extreme realists thus regard the net maximization of the national 
interest as a sufficient reason for conducting low-intensity operations. 

For example, if the U.S. government were to determine that abducting a 
suspected drug trafficker from Mexico serves the national interest and can be 
accomplished without affecting trade or diplomatic relations, then the operation 
would be justified. Presumably, this would be so even if some innocent people 
were killed, or important property damage caused in the course of the abduction, 
because the U.S. Government does not owe any duty to Mexicans, or to any 
foreigners. The touchstone of the theory is the national interest. The only 
admissible reason for moderating our behavior, then, is the perception that 
otherwise our national interest is likely to be harmed, after computing the benefits 
reaped by the kidnapping. 

Moderate realism, on the other hand, contends that maximizing the national 
interest is a necessary but not a sufficient reason to justify low-intensity opera- 
tions. These must be justified by appealing to the national interest, but must also 
comply with the requirements of necessity and proportionality that apply to the 
use of force generally. In our previous example, perhaps the kidnapping could 
be morally justified if (a) all other means to persuade the Mexican Government 
to render the suspect have failed; and (b) no Mexican lives were lost. 



Teson 93 

(c) Utilitarian and Communitarian Realism 

One preliminary question for the evaluation of realism is what counts as 
national interest. Realists have two very different answers to this question. 

It seems intuitively obvious that there are goals that, if accomplished, would 
benefit most people in a country. For example, if U.S. industry becomes more 
competitive, given the American capitalist economic system, most American 
citizens will benefit. There would be more wealth and jobs in the country. 
Therefore, diplomatic actions by the U.S. government aimed at this end serve 
the national interest. 

This approach to national interest simply defines it as the aggregate maximization 
of preferences of the citizens of the State. National interest is explicated by appealing 
to well-tested empirical laws and theories, and refers to actual preferences of people. 
It follows that the validity of claims to national interest may be tested by empirical 
calculations. Some claims are simply empirically false, as for example appeals to the 
national interest when the only interest being served is that of a minority. There is 
nothing problematic with this definition of the national interest, because it does not 
appeal to something above and beyond the actual interest of persons. The national 
interest is real, concrete, and measurable. This is the utilitarian conception of national 
interest. In its normative form, this thesis holds that the satisfaction of the net 
aggregate interests of citizens of the State justifies international acts. 

Realists, however, sometimes speak as if there were an interest that is national 
in the sense of not being reducible to the aggregate actual interests of the citizens 
of the State. This national interest presumably endures regardless of the change 
of governments and regardless of the nature of internal sociopolitical arrange- 
ments. This is the communitarian definition of the national interest and may 
be contrasted with utilitarian realism. Claims that an international act (such as an 
invasion) will enhance national glory preclude the measurement of national 
interest by empirical means. They rely on a conception of interest that is national 
in the Hegelian sense; that is, held by the nation as a moral being that endures 
over time. Communitarians thus reject the utilitarian idea that "counting heads" 
is the way to determine national interest. 

Of course, if the majority of the population feels strongly about national glory 
or ethnic pride, then their preferences would be maximized by an international 
act in pursuit of those goals. In this case, utilitarian and communitarian realism 
will agree on the desirability of a particular outcome. Yet the communitarian 
approach to national interest is not sensitive to empirical falsification. Com- 
munitarians claim that their values are to be found in the "intimations of the 
tradition'* of a given society. If national interest is defined by reference to such 
notions, it will often be the case that the actual aggregate interests of living citizens 
do not coincide with what is dictated by the "intimations of the tradition." 
Although appeals to national glory may be found after analysis to reflect the 
preferences of citizens of a State, their failure to do so would not invalidate their 



94 Legal & Moral Constraints on Low-Intensity Conflict 

justification on communitarian grounds. This version of realism is foundationalist, 
in that appeal to the foundational principles of the community is thought to 
outweigh the computation of actual preferences. 

Communitarian realism has the virtue of rejecting the pure utilitarian approach 
to national interest described above. It recognizes that higher principles of 
morality may not be foremost in the midst of the majority of members of the 
community at a given historical moment. By refusing to conform foreign policy 
to transient popular sentiment, this version of communitarianism attempts to 
instill a principled consistency into the conduct of international relations. And 
in many situations this approach will be intuitively appealing. For example, an 
argument against the CIA's involvement in the overthrow of Chilean President 
Salvador Allende can be made on the grounds that such action was incompatible 
with the principles embedded in the American tradition of respect for human 
rights and the popular will. 

(d) A Critique of Realism 

Normative realism underlies much of the literature on low- intensity conflict. 
Most of the works on low-intensity conflict are about what strategies better serve 
the U.S. national interest. But I submit that normative realism is not morally 
sound. Advancing the national interest is neither a sufficient nor a necessary 
condition to justify low-intensity operations. 

I will start with utilitarian realism. This version of realism, as suggested above, 
has considerable appeal became it is based on democratic principles. What could 
be more obvious than that a government that we elect to defend our interests 
should do those things that advance our interests? In the philosophical literature, 
the most devastating critique of utilitarianism comes from a foundationalist 
perspective. Many international acts may serve the national interest in a 
utilitarian sense, yet be immoral on other grounds. Just as in individual morality 
we must refrain from immoral acts, even if they maximize our self-interest, so 
in international relations governments must refrain from immoral acts even if 
they serve the national interest. Thus the foundationalist critique attacks the often 
unstated premise of realism that there is no international morality. 

This flaw of utilitarian realism is clearly seen in its well-known indifference 
to human rights. Surely someone committed to liberal principles would not 
accept the proposition that a government may blatantly violate the rights of 
persons in other countries provided that in doing so it advances his interests. Put 
differendy, the objection to utilitarian realism is that its premise or point of 
departure is wrong because it is incomplete. A government's job description 
should not be "persons we elect to maximize our interests", but "persons we 
elect to maximize our interests consistently with respect for human rights." A 
morally justified democracy constrains the will of the majority with respect for 
human rights. Just as domestically the majority may not oppress minorities, so 



Teson 95 

internationally the majority may not direct its own government to ignore the 
rights of individuals in other States. 

Although a government's obligation to maximize the preferences of the 
citizens it represents cannot be a paramount and exclusive international duty, 
utilitarian realism still has a role to play. When the government carries out a 
low-intensity operation that harms the national interest (understood in an 
empirical, not holistic, sense), even if the behavior serves worthy purposes, the 
citizens have a claim against their government for not doing its job properly. This 
is much like the claim that a client has against a lawyer who does not do things 
in the interest of the client, even if the lawyer is moved by noble considerations. 

Communitarian realism, in contrast, shares with the human rights approach a 
foundationalist quality. For communitarian realism, too, there are principles that 
outweigh the pursuit of actual interest. However, in spite of its anti-utilitarian, 
foundationalist approach, communitarian realism is untenable for two reasons. 
The first is common to realism generally, and has already been referred to: the 
indifference to human rights. In fact, by postulating some national interest over 
and above the actual preferences of citizens, this version of realism is far more 
dangerous, and (in spite of its current vogue) even less appealing than utilitarian 
realism, because it is too close to the spurious and destructive themes of 
nationalism. The attractiveness of the communitarian critique of the CIA's 
involvement in overthrowing Allende is that the tradition to which it appeals is 
morally worthy on other grounds. Yet communitarian theory is hopelessly 
relativistic. It is committed to justifying appalling regimes of oppression with 
frightful foreign policies if those practices are embedded in the tradition of the 
society in question. Communitarians lack the moral tools to come to the defense 
of dissenters from the tradition. For example, communitarians are bereft of 
arguments to defend the victims of the Tiananmen Square massacre, since tyranny 
has traditionally been part of the "intimations" of Chinese tradition. Nor would 
they have the moral tools to oppose the ambition of Islamic fundamentalists 
forcibly to convert infidel nations. Communitarians have no room for inter- 
national human rights or anything close to them, since the very basis of the theory 
rejects the notion of transnational justice or morality. 

The second reason for the moral untenability of communitarianism is that, 
unlike utilitarianism, it does not even take seriously democratic representation. 
Communitarians have no reason for preferring a democratically elected govern- 
ment that does not pursue (domestically and internationally) the "intimations of 
the tradition" to an enlightened undemocratic government. Indeed, this was 
precisely the view of Plato, the most eminent of communitarians. 

A communitarian might reply to this criticism as follows: "Why can't we 
identify the relevant community as the international community, and say that 
since that community has agreed to an international law of human rights, 
international human rights are now part of the intimations of the tradition?" This 



96 Legal & Moral Constraints on Low-Intensity Conflict 

position amounts to unconditional surrender, since it makes communitarian 
realism trivially true. If human rights are universal, then communitarianism, for 
all purposes, is tantamount to liberalism. The communitarian can no longer 
identify a relevant community as legitimately denying human rights, because 
members of that community would be also part of the international community, 
and as part of that community they are governed by the imperative to honor 
human rights. 

To conclude: Normative realism is unappealing in any of its versions because 
of its indifference to universal principles of justice — in particular, human rights. 
Utilitarian realists are right in seeking a liberal democratic foundation of national 
interest, but consideration for human rights is needed. Communitarian realists, 
on the other hand, are right in seeking a foundational approach to reject the 
utilitarian determination of the national interest; they are wrong, however, in 
the foundational principle (appeal to the intimations of the tradition) mat they 
propose. This principle, like the utilitarian one, is also insensitive to human rights; 
unlike its utilitarian counterpart, communitarian realism neglects actual interests 
vindicated by democratic theory (unless the tradition happens, by historical 
accident, to be the right one on independent moral grounds.) 

(e) The Human Rights Approach 

The task then is to provide a sound theoretical basis for international morality, 
one that avoids the pitfalls of realism. Here I contend that an international act is 
immoral when it violates human rights. If this suggestion is accepted, then we 
can clearly see why serving the national interest cannot possibly justify low-in- 
tensity operations that violate the rights of individuals in the target State. The 
reason simply is that universal human rights outweigh the pursuit of interest. It 
follows that a morally acceptable description of the international role of govern- 
ment is this: a government is entrusted by the citizens of the State with the 
conduct of foreign affairs in such a way so that the interests of the citizens will 
be served, provided that global human rights are respected. The human rights- 
based theory of international law is compatible with the pursuit of the national 
interest (in the utilitarian sense), when respect for human rights constrains it. 

The foremost national interest of citizens in a democracy is to defend their 
just institutions. In a sense, this interest may seem to respond to the description 
offered by communitarian realists, since the morality of defending just institu- 
tions is not contingent on citizens actually wanting to support them at a particular 
historical time. A government having the wisdom to defend just institutions 
when they fall from popular favor would be morally justified in opposing the 
will of the majority. However, as suggested above, the human rights theory of 
international relations departs from communitarian realism even if the outcome 
coincides with the liberal view. In the example just given, the communitarian 
interest is just contingently analogous to the liberal defense of just institutions, 



Teson 97 

and in any case, the communitarian justification applies only to the domestic 
defense of just institutions. 

Two reasons support the larger duty of democratic governments to uphold 
human rights and democracy. The first reason is simply that human rights are 
universal, as indicated above. Therefore a rights-respecting democratic govern- 
ment has a three-fold international duty: to defend its own just institutions; to 
respect the rights of persons in other countries; and to promote human rights 
and democracy globally. There is a difference, however, between these three 
ways of upholding human rights. The first duty of a government is to defend its 
just institutions: this duty is perhaps the only absolute duty that governments 
have. The second duty of a democratic government is to respect human rights 
of persons in other countries, for example, when conducting otherwise permis- 
sible low-intensity operations. This duty is very strong, although perhaps not 
always absolute. The third duty of a democratic government (related to the 
second) is to defend and promote respect of human rights by foreign govern- 
ments. This duty is strong, yet constrained by prudential considerations that relate 
to the capabilities of the State, its resources, and the safety of its citizens. 

The second reason governments must uphold human rights and democracy 
globally is, as Immanuel Kant pointed out, that it is the only way to secure 
peace. By encouraging the creation and preservation of democratic societies 
abroad, the democratic government is building the liberal alliance which alone 
can serve as the basis for a stable international community. If Kant is right, liberal 
democracies are far less prone to war than illiberal regimes. The coexistence of 
democratic and undemocratic regimes is the main cause of conflict, because those 
two radically different political systems cannot easily coexist. The difference in 
regimes is the cause of international instability. 

We see now clearly the consequences for the justification of low-intensity 
operations of the foregoing considerations: a low-intensity operation will be 
justified if, and only if, it is consistent with respect for global human rights. Thus, 
a government may pursue the national interest, either in the utilitarian sense 
(defined as the satisfaction of the aggregate preferences of the citizens of the State), 
or in the (putative) communitarian sense of defending just institutions, provided 
that in doing so it respects the rights of everybody. 

The human rights approach helps us dispose of one kind of low-intensity 
operations: insurgency and counter-insurgency. The human rights approach 
includes a theory of just war: just war is war waged in defense of human rights. 
Thus, in almost any war, international or civil, there is a side that is morally right. 
That side may be waging a war to defend itself from an aggressor, or attempting 
to overthrow a tyrannical government (at home or abroad), or attempting to 
justly secede from a parent State (self-determination). Insurgency operations 
by a democratic State designed to assist the just warriors are justified, provided 
that the help is welcome. For example, a response to a request for assistance by 



98 Legal & Moral Constraints on Low-Intensity Conflict 

Iraqi revolutionaries aimed at overthrowing Saddam Hussein is morally justified. 
Similarly, counter-insurgency operations to assist legitimate, rights-respecting 
governments against illiberal uprisings are morally justified, provided, again, that 
the government welcomes the assistance. 

In particular, it is forbidden to assist illegitimate governments (or illiberal 
groups in civil wars) on the grounds that they are "friends" of the (legitimate) 
government carrying out the operation. A very important corollary of the human 
rights theory of international law and relations is that only legitimate governments 
may be assisted. Kant's liberal alliance is the only plausible foundation of 
international law; illegitimate governments are excluded from its benefits. This 
point sharply brings out the contrast between the human rights approach and 
realism. Many realists have maintained that in foreign policy we should help our 
"friends," even if they are despicable dictators. Leaving aside for the moment 
the very plausible claim that such policy is disastrous in the long run, the human 
rights theory condemns this view as profoundly immoral. 

This definition, however, is still very general, and at first blush many will find 
it unsatisfactory. One possible objection is the one from State sovereignty. A 
low-intensity operation may be conducted in such a surgical way that no one's 
rights are violated, yet the sovereignty of the target State would still have been 
punctured. This objection overlooks the fact that State sovereignty is also 
grounded on human rights. It follows that whatever arguments are given for 
respecting State sovereignty (and these can only be human rights arguments) will 
have to be balanced against the human rights arguments offered to justify the 
low-intensity operations. This assertion needs to be explained. I turn now, 
therefore, to the examination of the principles that underlie and justify State 
sovereignty. 

IV. The Justification of State Sovereignty 

Low-intensity operations violate the sovereignty of the target State. We saw 
that in some cases there are moral reasons to make war. The overriding aim of 
a just war is the protection of human rights. A government's war in defense of 
the rights of the citizens which are being violated by a foreign aggressor is called 
self-defense. A government's war in defense of the rights of the citizens of the 
target State which are being violated by their own government is called 
humanitarian intervention. 

The twin principles of State sovereignty and nonintervention are among the 
best established precepts of international law. A liberal conception of politics is 
one in which the just civil society protects and recognizes basic human rights of 
the type found in modern constitutions or in pertinent international instru- 
ments. A liberal conception of State sovereignty has to be consistent with the 



Teson 99 

justification it offers for the legitimacy of the State generally. I suggest that a State 
is internationally legitimate when it is internally legitimate. 

The best way to approach the question of the legitimacy of the State is to 
distinguish between the horizontal social contract and the vertical social contract. 
Citizens of the State are bound to one another by the principles ofjustice that underlie 
a just constitution: this is the horizontal social contract. Meaningful social coopera- 
tion requires the creation of government, of institutions and offices to which political 
power is attached. These offices are occupied by persons who are democratically 
chosen by the citizens of the State. These persons enter, therefore, into an agency 
relationship with the people who have elected them. This agency relationship is the 
vertical social contract. In a democracy, the government is accountable to the people 
and has to remain faithful to the terms of the vertical contract. 

From this it follows that illegitimacy may take place in two ways. First, the 
vertical contract may be breached, in which case the government is illegitimate. 
This occurs when the government is unrepresentative, or, even if it was originally 
representative, it engages in serious human rights violations. The government 
has lost its standing: it does not represent the citizens anymore. Second, the 
horizontal social contract may break down, so that the State is illegitimate. This 
state of things may range from a situation of anarchy (Lebanon may be a case in 
point) to a fragmentation of a parent State into several independent States (much 
as happened with the Soviet Union). 

Thus sovereignty is the flip side of legitimacy. A government is legitimate 
when it genuinely represents the people and generally respects human rights. 
Such a government must be respected by foreigners, in particular foreign 
governments. A State is legitimate and must be respected, when it is the result 
of a horizontal social contract. In turn, a legitimate social contract (a legitimate 
constitution) is the one that, at the very least, protects the basic human rights of 
its citizens. Such a State must likewise be respected by foreigners, in particular 
foreign governments. 

Now a group of people residing in a territory, bound by a legitimate horizontal 
contract, may rescind the vertical contract as a result of a breach by their 
government. This may occur in violent revolution or by peaceful means. The 
government in power becomes illegitimate, that is, the vertical contract has 
collapsed. In these cases, citizens have not lost their rights. They have not forfeited 
their human rights nor their civil society which is the result of the social contract 
that protects such rights. (The horizontal social contract, I emphasize, is derived 
from individual rights.) They have given up neither their individual rights nor 
their life in common, their commitment to social cooperation. The illegitimate 
government, however, is not morally protected. Foreigners, therefore, have a 
duty to respect human rights and life in common in the State, but do not owe a 
similar duty to the illegitimate government, because it has lost its standing with 

Aft 

its own people. It does not have any moral standing, therefore, with foreigners. 



100 Legal & Moral Constraints on Low-Intensity Conflict 

The main reason for this loss of moral legitimacy is practical. If a tyrannical 
government enjoys the protection of international law it can continue to oppress 
its people with impunity. 

It is possible, however, that even the horizontal contract may collapse, that 
the civil society may itself disintegrate. Or there may be an illegitimate, spurious 
social contract, one that does not provide for respect of basic human rights. In 
these cases, the State is illegitimate. Of course, afortiori y the government will be 
illegitimate, since the vertical contract exists at the sufferance of the horizontal 
contract. In this case also, as in the case of the collapse of the vertical contract, 
individuals, who can no longer be called citizens, have not forfeited their 
individual rights. Stateless people, persons in the State of nature, hold individual 
rights. (Imagine that in an unexplored, remote area of the globe we discover 
individuals who do not have any political or social organization, who just wander 
in the region. Human rights, I take it, would accrue to them, although I will not 
attempt to prove this point.) Foreigners, and in particular foreign governments, 
must respect the human rights of the individuals that reside in that putative State 
notwithstanding the collapse of the horizontal social contract. 

Yet if the horizontal contract collapses, citizens do not have a claim to life in 
common anymore. Foreigners, therefore, are not under as stringent a duty to 
respect that "society" as in the case of collapse of the vertical contract. They must 
respect individual human rights, but there is no more social contract to respect. 
The individuals, not the State or the society, are all that is left. 

To summarize: A State is entided to the complete protection of State 
sovereignty afforded by international law when it is founded upon a legitimate 
horizontal contract and a legitimate vertical contract. A State is entided to a lesser 
sovereignty protection when the vertical contract has collapsed. While human 
rights and the right to a life in common ought to be respected, the illegitimate 
government and its instrumentalities are not entided to protection. Finally, when 
both the horizontal and vertical contract have collapsed, the individuals that 
reside in the State are entitled to respect for their individual human rights. 

We turn now to the application of these principles that support State 
sovereignty and how they can preclude the pursuit of low-intensity operations 
by foreign governments. I shall start with the somewhat easier question of the 
moral standing to undertake a low-intensity operation. 

V. Who Can Undertake a Low-Intensity Operation 

The first consequence of the foregoing considerations is that only a legitimate 
government has moral standing to carry out a low-intensity operation acting as 
a government. Its members may, however, join a just war as private volunteers, 
like anybody else. Thus dictators may not validly undertake low-intensity 
operations. The reason is straightforward: the vertical contract is invalid, the 



Teson 101 

agency relationship spurious, and thus the government cannot validly act on 
behalf of the citizens of the State. Therefore, its international acts, and in 
particular its coercive acts (such as war and low-intensity operations) are invalid 
as acts of the State. 

At first blush this seems counter-intuitive. Why can't the illegitimate govern- 
ment of A send a group of people to train and advise the combatants led by the 
legitimate government of B in its fight against illiberal insurgents? Surely B can 
use all the help it can get. However, this will not do. The reason is that the 
government of A cannot validly order citizens of A to fight and perhaps risk their 
lives in another State, even for a just cause! Because A's is an illegitimate 
government, it lacks the moral standing to be commander-in-chief. The "sub- 
ordinates" do not have any duty to obey, and coercing them into fighting is 
unjustified. Now any person has a right to join in a just war fought in another 
State, if invited by the just warriors. So if people in A volunteer to join the just 
counter-insurgency in B, they will be doing so in their private capacity. They 
may not use the resources of the State, and they will not be representing the 
State. The illegitimate government may not engage the people and the collective 
resources of the State in any coercive action, war or low-intensity conflict. 

VI. State Sovereignty and Low-Intensity Conflict 

The question whether a low-intensity operation violates the target State's 
sovereignty is answered by applying the principles suggested in the foregoing 
discussion. Three cases are possible. First, the target State is fully legitimate (both 
the State and the government are legitimate). Second, the target State rests upon 
a valid horizontal contract, but the vertical contract is invalid, rendering the 
government illegitimate. Finally, the target "State" does not rest upon a valid 
horizontal social contract. 

(a) Low-Intensity Operations Against a Fully Legitimate State 

Assuming the justice of the cause and the absence of the other moral constraints 
having to do with proportionality and modus operandi, an operation will still 
violate the sovereignty of a target State if it is fully legitimate, i.e., if both the 
horizontal and the vertical contracts are intact. There is one exception (more 
apparent than real) to this principle: when the legitimate government of the target 
State authorizes the operation, as is often the case in justified counter-insurgency. 
Thus, for example, whether the U.S. efforts to help the government in El 
Salvador are barred by sovereignty considerations, other things being equal, 
depends on the legitimacy of the government. If it is illegitimate, helping it is 
immoral. If the government is legitimate, the morality of the operation does not 
depend on sovereignty considerations, because of the authorization. Recall, 
however, that the other requirements have to be fulfilled; in particular, the cause 



102 Legal & Moral Constraints on Low-Intensity Conflict 

has to be just. A legitimate government may not always espouse a just cause, so 
the operation may be illegitimate on those grounds. In addition, the envisaged 
operation may be disproportionate, or intrinsically odious, or otherwise in 
violation of human rights, and be banned for those reasons. 

The Eichmann case may illustrate this point. In 1960, Israeli agents located 
the infamous Adolf Eichmann living in Argentina under a false name. They then 
kidnapped him out of Argentina. He was taken to Israel, where he was tried, 
convicted, sentenced to death, and hanged. At the time, both the Israeli and the 
Argentine Governments were legitimate. Was the operation morally justified? 
This is a particularly instructive case, because punishing a war criminal is a worthy 
aim, especially for those (like me) who sympathize with retributive impulses. Yet 
I believe that the Israeli Government was not justified in kidnapping Eichmann, 
as was recognized by the United Nations Security Council and implicitly 
acknowledged in Israel's apology to Argentina. 

Let us first look at the aim itself. I have indicated that the main justification 
of international acts, and international coercion in particular, is the defense of 
human rights. Punishing a war criminal (even one as evil as Eichmann) is, 
however, a less compelling aim than a direct defense of human rights. There are 
two possible justifications that the Israelis had for punishing Eichmann: retribu- 
tive justice and deterrence. Retributive justice corresponds to an abstract idea of 
just dessert that is hard to link to the defense of human rights in any obvious 
sense (even if we otherwise accept a retributionist justification of punishment). 
Deterrence, in turn, is only indirecdy linked to the defense of human rights: 
Eichmann must be punished because that will be a lesson for potential war 
criminals and mass murderers, and thus everybody will feel more safe, that is, the 
probability of rights violations will decrease. 

On any account, then, the goals pursued by the Israeli Government, while morally 
worthy, seemed insufficient to outweigh the moral reasons that support State 
sovereignty. The Israelis should have requested help from the Argentine Govern- 
ment. Even if that help would have been denied (and there is no evidence that it 
would) the moral reasons that support sovereignty when the State is fully legitimate 
supersede, I think, legitimate retributive interests. Of course, given the horrific nature 
of Eichmann's crimes, the Argentine Government would have acted immorally had 
it refused to surrender or, in the alternative, prosecute Eichmann. But the remedy 
lay not in the violation of a legitimate State's sovereignty. Members of the liberal 
alliance have a duty to keep to rational methods of resolving disputes. Low-intensity 
operations such as kidnapping have no place within the alliance, no matter how 
noble the cause or how vile the victim. 

(b) Low-Intensity Operations Against an Illegitimate Government 

The second situation is more complex: The State is legitimate, but the 
government is not. The general principle in this circumstance for low-intensity 



Teson 103 

operations is that, assuming all the other conditions are met, they are legitimate 
only if they are directed against the government itself and its instrumentalities. 
This means that the operations may not violate the human rights of the citizens, 
nor disrupt their life in common. 

The example of Iraq may again serve to illustrate this point. I indicated already 
that a legitimate government's assistance to Iraqi citizens who aim to oust their 
dictator is morally justified. But let us suppose that the United States contemplates 
an operation to destroy the arsenal of Iraq, in particular all those facilities and 
materiel that may increase nuclear capabilities. State sovereignty does not 
preclude this operation, since it is directed against the government and its 
instrumentalities, not against the citizens of Iraq. Recall that the other conditions 
must obtain. In this case, the aim — prevention of aggression by a tyrannical 
government — is justified. 

In these cases, it is important to recall that the citizens have not waived their 
human rights nor their right to a State, to a life in common. Therefore, the 
operation must respect these rights. It must be directed as narrowly as possible 
against the government. 

Other situations are relatively unambiguous; for example, help provided to 
just revolutionaries against an illegitimate government, or protective action on 
behalf of imminent victims of a tyrant's repression, or rescue missions to protect 
nationals in danger. 

But even in these clear cases, the subjects of the government have not given 
up their State. Therefore, the operation must respect the local institutions 
reflective of their life in common. One hypothetical example may help clarify 
this principle. Let us suppose that the U.S. Government has located in Cuba a 
notorious drug lord, who we believe has committed very serious crimes in the 
Unites States. Is the United States morally justified in kidnapping this person 
from Cuba? The Cuban government, we shall assume, is illegitimate, but the 
Cuban State is not. In other words, Cubans have a right (against foreigners) that 
their life in common be respected. This includes institutions such as the judicial 
system. So the answer to our question will depend on whether the courts in 
Cuba are independent or, on the contrary, subservient to the Castro regime. If 
the former, the United States must not act peremptorily and should rely on 
regular channels (e.g., request for extradition). If the latter, the courts are not an 
institution to administer justice to the Cuban people, but rather a mere instru- 
mentality of the illegitimate regime. In this case, I suggest that the United States 
may act, provided that the other requirements are met. The justification is that 
the United States would be doing no more than capturing a suspected criminal 
from the shelter offered by a gang of outlaws. 

It must not be forgotten that citizens in the target State have not waived their 
individual rights. Therefore, low-intensity operations must respect human rights. 
This raises the very difficult issue of people who are killed or injured during an 



104 Legal & Moral Constraints on Low-Intensity Conflict 

otherwise justified operation. The most popular doctrine to justify killing people 
in a just war (and the same considerations apply to justified low-intensity 
operations) is the doctrine of double effect, which is in part recognized by present 
international law. According to this doctrine, incidental loss of lives or property 
is not prohibited if the intent of the just warrior was to obtain a military advantage, 
not to victimize innocents, even if he could foresee that innocent people would 
die. 

The doctrine of double effect, however, has been recendy challenged by 
Judith J. Thompson. Her critique is skeptical of the moral relevance of the 
essential distinction between specific intent to kill bystanders and mere foresight 
that bystanders will die. In her view, if there is any justification for the incidental 
loss of lives of bystanders in a war, it must depend on the justice of the cause - 
on the larger purpose of the operation. Professor Thompson, however, bypasses 
this question as too hard, and, resting on her shoulders, so will I. I offer two 
observations, however. First, the justification for the incidental loss of innocent 
lives in a low-intensity operation does not differ from the justification one wants 
to give for such loss in conventional war. So whether one chooses the doctrine 
of double effect or the "larger" purpose doctrine to justify incidental loss of 
innocent lives in a just war, the same rationale is available for justified low-in- 
tensity operations. (Recall that the other constraints, such as proportionality and 
modus operandi, still apply.) Second, there is a clear difference in moral culpability 
between the just warrior (i.e., one fighting for a just cause) who tries as hard as 
he can to protect innocents, and the just warrior who chooses to terrorize and 
victimize them in his pursuit of the just end. So at least that difference may be 
clearly drawn. A low-intensity operation against an illegitimate government, 
then, may not be aimed at innocent people, even if that is conducive to the 
demise of the tyrant. Moreover, the agents conducting the low-intensity opera- 
tions must design it having in mind the protection of the rights of bystanders. 

(c) Low-Intensity Operations Against an Illegitimate State 

In this case, the social contract has collapsed, and no sovereignty considerations 
apply. Anarchy reigns, and different groups control different parts of the territory 
as in Lebanon in the 1980s. Yet even in this case, the aim of the low-intensity 
operation has to be defensible under just war theory; and the individual human 
rights of the residents, and in particular innocent people, ought to be respected. 
Thus the considerations about innocent bystanders discussed in the previous 
paragraph apply here as well. 

VII. Necessity and Proportionality 

The main purpose of this paper has been to suggest principles to evaluate 
low-intensity operations in the light of State sovereignty. Two other conditions, 



Teson 105 

however, further restrict the legitimacy of these operations. The first is the need 
to satisfy the customary requirements of necessity and proportionality. Con- 
siderations of necessity involve the determination that no less intrusive means are 
available. Considerations of proportionality involve calculations about costs and 
benefits of the low-intensity operation in a way that is not solely dependent upon 
the national interest. The general rule is that the coercion used in the operation, 
and the consequent harm done by it, has to be proportionate to the importance 
of the interest that is being served, both in terms of the intrinsic moral weight of 
the goal, and in terms of the extent to which that goal is served in this particular 
instance. 

VIII. The Requirement that the Operation Comply 
with Minimal Notions of Decency 

The final condition for a morally defensible low-intensity operation is that it 
must not be so odious in its modus operandi as to corrupt the virtues necessary to 
liberal democratic life. This requirement rests upon an important moral insight: 
there are things we cannot do to others because of what they are (i.e., they hold 
rights); and there are things we cannot do to others because of what we are. 
So what are we? As members of a just civil society we must act in a way such 
that our civic virtues and best traits of character will be cultivated. This applies, 
a fortiori , to actions by the government, which is supposed to represent the people. 
In part, the desirability of governmental virtue derives from considerations of 
self-interest: we cannot expect our government to behave honorably with us if 
it goes around the globe sending hit squads to assassinate and torture people, even 
for just causes. 

An example may help illustrate this proposition. Is it morally permissible to 
assassinate Saddam Hussein? I would think not. The proper course of action is 
to help the Iraqis overthrow him, capture him, and try him in accordance with 
internationally accepted norms of judicial procedure, by Iraqi courts with 
international supervision, or better still, by an international criminal court. 
Assassination is banned, not because Saddam doesn't deserve to die, but rather 
because agents of a liberal democracy must conduct themselves in a way that 
honors the civic virtues for which they stand. The same reasoning applies to 
other intrinsically despicable modes of action, such as torture and terrorism, 
regardless of sovereignty considerations, just cause, or national interest. 

IX. Conclusion 

I have argued in this paper that low-intensity operations may be justified only 
if they further a just cause, they do not infringe the target State's sovereignty 
(which is itself a function of internal legitimacy), they otherwise respect human 



106 Legal & Moral Constraints on Low-Intensity Conflict 

rights, they are necessary and proportionate, and they comply with minimal 
norms of decency in their mode of implementation. My account of the moral 
legitimacy of low-intensity operations sets aside the morally false obsession with 
national interest, and substitutes in its place the defense of human rights and just 
institutions. 

One last word: as the world moves toward the liberal alliance predicted by 
Immanuel Kant exactly two hundred years ago, low-intensity operations will 
gradually become less necessary, for the same reasons that overt conflict will 

CO 

decrease. Members of the alliance will rely upon their mutual commitment to 
democracy, human rights, and the rule of law, and international disputes will 
gradually be entrusted to international institutions. But there is a crucial proviso: 
tyrants have no place in this scenario. The international State system will not 
achieve peace and stability as long as international law continues to protect 
dictators under the guise of State sovereignty. The main cause of war, and the 
main source of the sad necessity that democracies have to carry out low-intensity 
operations, is the existence of the enemies of freedom, in and out of government. 
Only a truly universal movement toward democracy will render low-intensity 
operations obsolete. 

Notes 

*Dr. Fernando Teson is a Professor of Law at Arizona State University. 

1 . For an influential modern reappraisal of the morality of war, see WALZER, JUST AND UNJUST WARS: 
A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS (1977). 

2. Kant, To Perpetual Peace: A Philosophical Sketch (1795), in PERPETUAL PEACE AND OTHER ESSAYS 
107, 110 (Humphrey trans. 1983). 

3. For a definition of low-intensity conflict, see infra, text accompanying nn. 9-12. 

4. Of course, the intensity of the conflict is never "low" for those who direcdy suffer its consequences. 

5. Even having fought fairly and with chivalry in conventional war on the wrong side is sometimes regarded 
as praiseworthy. For example, the German Luftwaffe ace who says "I complied with my duty of fighting bravely 
for my country." This is, of course, on closer analysis morally dubious. 

6. See, for example, Kant's condemnation of certain forms oflow-intensity conflict in his Sixth Preliminary 
Article. Kant, supra n. 2, at 109-110. 

7. This attitude underlies, I think, the perception by many (which I believe is mistaken) of the intrinsic 
immorality of the CIA. 

8. The literature on the moral justification oflow-intensity conflict is surprisingly scarce. The only article 
on this specific issue is O'Brien, Countertenor, Law and Morality, in LOW-INTENSITY CONFLICT, at 187 
(Thompson ed. 1989). This article, however, does not go beyond very general remarks about international 
law and just war doctrine. 

9. See, e.g., the definition by the U.S. Joint Chiefs of Staff: Low-intensity conflict is a limited politico- 
military struggle to achieve political, social, economic, or psychological objectives. It is often protracted and 
ranges from diplomatic, economic, and psycho-social pressures through terrorism and insurgency. Low-inten- 
sity conflict is generally confined to a geographic area and is often characterized by constraints on the weaponry, 
tactics, and level of violence. A Joint Low-Intensity Conflict Project Final Report, Executive Summary (U.S. Army 
Training and Doctrine Command], at 3 (1986). For a summary of criticisms to this definition, see Thompson, 
supra n. 8, at 1, 3. See also the long list offered by MCMAHON, LOW-INTENSITY CONFLICT: THE 
PENTAGON'S FOIBLE 34 (1990). 

10. In this sense, see the position taken by Col. Harry G. Summers, A War is a War is a War is a War, in 
Thompson, supra n. 8, at 27. 

11. See, e.g., O'Brien, supra n. 8, at 188, 199-104. 



Teson 107 

12. See, e.g., the International Court of Justice in the Military and Paramilitary Activities Case (Nicar.v. 
U.S.), 1986 ICJ 101-102 (distinguishing between "most grave" and "less grave" prohibited uses offeree in 
customary international law). 

13. See Sarkesian, The American Response to Low-Intensity Conflict: The Formative Period, in ARMIES IN 
LOW-INTENSITY CONFLICT: A COMPARATIVE ANALYSIS at 19, 21 (Charters and Tugwell eds. 1989), 
(showing a continuum of coercion in different types of conflict). 

14. Seminal works in the realist tradition include MORGENTHAU, POLITICS AMONG NATIONS (1959); 
WALTZ, MAN, THE STATE, AND WAR (1959); and BULL, THE ANARCHICAL SOCIETY (1977). I realize, 
of course, that I am oversimplifying realism. The doctrine has many variations, yet I deal in the text with the 
central and, as far as I know, uniform methodology of national interest analysis. 

15. See Hobbes, On Dominion, Chapter XIII, cited by HlNSELY, POWER AND THE PURSUIT OF PEACE 
51 (1963). See generally HOBBES: WAR AMONG NATIONS (Airaksinen and Bertman eds. 1989). For a modem 
version of this view, see NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES (1983). 

16. For a convincing response to the realists' moral skepticism, see Cohen, Moral Skepticism and International 
Relations, 13 Phil. & Public Affairs 299 (1984). 

17. See infra text accompanying nn. 40-48. 

18. These facts are not fanciful: see U.S. v. Verdugo-Urquidez, 939 F. 2d 1341 (1991). 

19. For a discussion of necessity and proportionality, see infra Section VII. 

20. Communitarians have confined themselves to domestic political philosophy. Representative com- 
munitarian views are SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982), and Walzer, The 
Communitarian Critique of Liberalism, 18 Political Theory 6 (1990). To my knowledge, no one has applied 
communitarian philosophy to international law and relations (Walzer is a curious case: even though he is usually 
seen as a communitarian philosopher, his views on war are predominately liberal.) For liberal replies to 
communitarianism, Gutmann, Communitarian Critics of Liberalism, 14 Phil. & Public Aff. 308 (1985); and Nino, 
The Communitarian Challenge to Liberal Rights, 8 Law & Phil. 37 (1989). 

21. See works cited supra, n. 20. 

22. Any of the essays in Thompson, supra n. 8, may serve to illustrate this point 

23. The seminal work in this regard is RAWLS, A THEORY OF JUSTICE (1971). 

24. See Kant, supra n. 2, at 1 1 4; see also Teson, The Kantian Theory of International Law, 92 Colum L. Rev. 
53, 60-62 (1992). 

25. While community may often be seen as defined by national borders, community may or may not 
coincide with nations — witness religious communities or the moral community of Europe defined by the 
European Convention on Human Rights. 

26. See PLATO, THE REPUBLIC, BOOK VII. Elsewhere Plato writes: "The wise shall lead and rule, and 
the ignorant should follow," PLATO, THE LAWS, at 609b. As Karl Popper has shown, the "Socrates" of the 
Republic is the embodiment of unmitigated authoritarianism. POPPER, THE OPEN SOCIETY AND ITS 
ENEMIES at 131 (2d ed. 1966). 

27. Notice that I am talking here about duties, not rights. I take for granted, at this stage of development 
of international law, that democratic governments have a right to demand human rights compliance from other 
governments, and, in some extreme cases, even to intervene by force to help victims of serious oppression. See 
generally TESON, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (1988). 

28. See Teson, supra n. 24, at 74-81. 

29. See TESON, supra n. 27, chapter 6; see also Luban, Just War and Human Rights, 9 Phil. & Public Aff. 60 
(1980). 

30. See generally BUCHANAN, SECESSION (1991). 

31. This requirement derives from considerations of autonomy, which apply to acts in defense of others. 
This is what complicates defense of others as opposed to self-defense. See Thomson, Self-Defense, 20 Phil. & 
Public Aff. 183, 305-306 (1991). But in international law, self-defense of the State is always defense of others. 
The government assists the citizens who are being victimized by aggression. And we fight in defense of others 
(our fellow citizens) when we repel the aggressor. It follows that, as I have tried to show elsewhere, the rationale 
for humanitarian intervention. See TESON, supra n. 27, at 113-114. See also Teson, International Obligation and 
the Theory of Hypothetical Consent, 15 Yale J. Intl. L. 84, 117 (1990). 

32. See supra n. 24, at 89-93. 

33. Even in the midst of the current global democratic revolution, we can see the endurance of this ruthless 
approach: Western Governments befriend the Syrian dictator Hafez Assad and the current Chinese leadership, 
on account of spurious "national interest." 

34. We don't even need a very deep theory of morality to condemn the realist's advocacy of "help to 
friendly dictators." Whether one relies on the universality of human rights (as I do), or on an American or 
Western communitarian tradition or on pure compassion, the result is the same. 

35. See Universal Declaration of Human Rights (1948), U.N. Doc. A/811. For the text see BROWNLIE, 
BASIC DOCUMENTS IN INTERNATIONAL LAW 250 (1983). 



108 Legal & Moral Constraints on Low-Intensity Conflict 

36. See TESON supra n. 27, chapters 3, 4, and 112-14. See also BEITZ, POLITICAL THEORY AND 
INTERNATIONAL RELATIONS (1979). 

37. The distinction between the two kinds of social contracts was suggested by Arendt, Civil Disobedience, 
in CRISES OF THE REPUBLIC 85-87 (1969). I elaborate the idea here in more detail. 

38. 1 realize that this is not the thrust of international law, which tends to protect any individual who has 
succeeded in subduing the population. See TESON, supra n. 27, chapters 3 and 4, and references therein. 

39. This does not mean that foreigners may do anything with regard to the illegitimate government. In 
particular, they may not overthrow it without the consent of the citizens of the State. See TESON, supra n. 27, 
at 119-23. 

40. See HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 266-274 (4th ed. 1990). 

41. This was one of the brief periods of civilian government in Argentina. 

42. See Murphy, Retributitrism, Moral Education, and the Liberal State, Criminal Justice Ethics, (Winter-Spring 
1985), at 3. Kant's reason for rejecting deterrence and adopting retribution is unsatisfactory — even creepy. See 
KANT, METAPHYSICAL ELEMENTS OF JUSTICE 99-106 (Ladd trans. 1965) (criminals must be punished 
because if we don't, we share in their bloodguilt). 

43. Of course, the situation changes radically if we change the date. Suppose Eichmann is residing in Buenos 
Aires in 1978, sheltered by the fascist military regime. The considerations against abducting him do not apply 
here, and Israel would have had a strong moral case for conducting the operation. The requirement that the 
operation be as surgical as possible (discussed in the following section) still applies. 

44. See Protocol Additional to the Geneva Convention, 12 August 1949, art. 51, 16 Int'l Legal Materials 
1391 (1977) (Indiscriminate attacks prohibited, but only "disproportionate" loss of incidental lives 
prohibited). It is interesting to note that for the moral version of the doctrine, just cause is essential, so that 
every death inflicted by the unjust warriors is unjustified. For international law, however, just cause is 
irrelevant. The army on the wrong side of a war may also cause incidental loss of lives under the doctrine 
of double effect. 

45. A recent version of the doctrine is offered in Quinn, Actions, Intentions and Consequences: The Doctrine 
of Double Effect, 18 Phil. & Public Aff. 334 (1989). 

46. See Thomson, supra n. 31. 

47. Id. at 296-298. 

48. In TESON, supra n. 27, 1 adopted Daniel Montaldi's suggestion that incidental loss oflives in an otherwise 
justified operation can sometimes be justified by reference to the nature of the evil that the just warriors are 
attempting to suppress. I suggested that the suppression of serious human rights violations was an interest 
compelling enough to outweigh, sometimes, the bystanders' right to life. See id., at 96-102, and references 
therein. Although I think I was on the right track, this view (which is consistent with Thomson's "larger cause" 
suggestion) needs to be elaborated further. 

49. Virtue theory is usually traced back to Aristode. See generally SHERMAN, THE FABRIC OF CHARAC- 
TER: ARISTOTLE'S THEORY OF VIRTUE (1989) For a contemporary account, see MClNTYRE, AFTER 
VIRTUE: A STUDY IN MORAL THEORY (2nd ed. 1984) The effect of adding virtue considerations to rights 
considerations is that the scope of morality is enlarged. In that sense, virtue theory provides important insights 
and supplement to liberal rights theory. However, contrary to virtue theorists, I regard civic virtues as parasitic 
on the values that underlie a liberal democracy, not the other way around. 

50. See NOZICK, PHILOSOPHICAL EXPLANATIONS 400-402 (1981). 

51. Of course, Saddam Hussein may permissibly die at the agents' hands if he chooses to resist the justified 
attempt to arrest him. 

52. See Doyle, Kant, Liberal Legacies, and Foreign Affairs (Part I), 12 Phil. & Public Aff. 205, 225-232 (1983) 
and the discussion in Teson, supra n. 24, at 74-81. 



Reform Intervention and 
Low-Intensity Conflict 

Commentary on Fernando R. Teson's 
"Low Intensity Conflict and State Sovereignty: 
A Philosophical Analysis" 



by 
Terry Nardin* 

Fernando Teson argues in his paper for strict moral limits on low-intensity 
operations, on the grounds that it is just as important to respect human rights 
in these activities as in conventional warfare. He is right to insist on such limits, 
but there are problems with the way he goes about making his case. 

Specifically, I want to argue that in trying to derive these limits from a 
philosophical theory of legitimacy, Teson gets bogged down in academic 
abstractions. A philosophical theory of legitimacy and sovereignty is one thing, 
moral principles of international conduct another. Furthermore, insofar as it does 
have policy implications, the legitimacy theory he offers is far too permissive. 
Instead of relying on an abstract and elastic theory of legitimacy for moral 
guidance, we should be paying more attention to the traditional constraints of 
international law, and to making sure that these constraints are reflected in U.S. 
law and military practice. 

International law — not only the law of the Charter, but also customary 
international law — frowns on armed intervention. Many moralists take a more 
permissive view of intervention, however. Some pay no attention to inter- 
national law at all, basing their judgments directly on whatever set of moral ideas 
seems most compelling, from natural law and human rights to the national interest 
and American values. Others claim to take international law seriously by agreeing 
that the sole lawful ground for the unilateral use of armed force by a State is 
self-defense, but then interpret self-defense so expansively as to effectively 
undercut the legal constraints. Almost all seem willing to agree that international 
law should be respected — provided nothing really important is at stake. In 
Professor Teson's version of the story, international law is morally defensible as 
a system of rules regulating the relations of legitimate States, but there is no moral 
basis for paying attention to whatever protection it may offer illegitimate States. 



110 Legal & Moral Constraints on Low-Intensity Conflict 

Before considering Professor Teson's argument, I want to express some 
concern about his handling of the concepts of sovereignty and legitimacy. 

For Teson, the concepts are linked: sovereignty is "popular sovereignty," a 
kind of legitimacy. The version of his paper presented at the Newport sym- 
posium defines "sovereignty" as "the monopoly of coercion" granted to a 
government "by the citizens that reside in it, and recognized by international 
law." This is not a good definition of sovereignty, however, not only because it 
loosely combines discrepant factual and normative criteria, but because it 
attempts to settle by definition what is actually the substantive point at issue in 
the debate over the moral limits on low-intensity conflict: whether sovereignty 
(and its corollary, territorial integrity) constitutes a principled obstacle to low- 
intensity operations. 

The core meaning of the word "sovereignty" in the context of international 
relations is "statehood," a status in international society that is defined by 
international law. A sovereign State is an independent State, but not necessarily 
a democratic one. So understood, sovereignty is a presupposition of international 
society, not a moral principle. "Legitimacy," in contrast, pertains to the moral 
claim a nation may have to being a State or, alternatively, to the claim a 
government may have to govern the State. It is plain that, on these definitions, 
"sovereignty" and "legitimacy" are different concepts, and that the definitions 
are by no means eccentric ones. We can talk of States whose tide to statehood 
or whose government fails somebody's test of moral legitimacy. If we tie 
sovereignty to legitimacy, then the concept of sovereignty becomes superfluous. 

International law exists because of the uncertainty and disagreement surround- 
ing moral judgments of State conduct. And the concept of sovereignty continues 
to have a place in international discourse because there is so much uncertainty 
and disagreement surrounding judgments of legitimacy. By making legitimacy 
the criterion of sovereignty, as Teson and many other moralists do, we substitute 
an obscure and contested criterion for a clearer and more objective legal standard. 
It is true that international law suffers from uncertainty and disagreement, but 
the remedy for that is to strengthen the consensual basis of international legal 
norms, not to abandon those norms for an even more uncertain philosophical 
formula. 

Professor Teson presents his views on the moral significance of legitimacy as 
an alternative to what he calls "realism," the view that the ethical standing of 
military actions (including low-intensity operations) depends on their conse- 
quences for the national interest and that such actions are justified when they 
advance that interest. Teson's own view is that military and low-intensity 
operations are justified when they serve to promote democratic government and 
human rights. I want to suggest that the difference between the realism he rejects 
and the human rights theory he defends is not as big as he thinks it is. 



Nardin 111 

It may help to sort things out to provide a more elaborate typology of moral 
views, one that identifies a wider range of moral views than Teson's dichotomy 
between political realism and the human rights perspective he advocates. 

In particular, I want to suggest that it helps to classify moral views along not 
one but two dimensions. The first allows us to distinguish between consequence- 
oriented and constraint-oriented viewpoints. A consequence-oriented ethic is 
one that makes consequences or outcomes the criterion of right and wrong, 
whereas in a constraint-oriented ethic right and wrong are determined on the 
basis of antecedently-authoritative principles. Realism, as Teson understands it, is 
an example of an outcome-oriented perspective, whereas his own human rights 
theory is (mostly) a principled or constraint-oriented perspective. 

But there is a second dimension of difference in ethical theory that cuts across 
this outcomes-principles dimension. Ethical theories can also be either universal 
or particular. That is, the outcomes or constraints they emphasize can be those 
of mankind as a whole, or they can be those of some particular portion of 
mankind, a particular community. If we make the simplifying assumption that 
these two dimensions can be dichotomized, we can generate a simple 2x2 table 
of possibilities (see Figure 1). 

FIGURE 1 



Universal 



Particular 



Consequence- 
Oriented 



Constraint- 
Oriented 



Utilitarianism 


Political Realism 


Common-sense 

Morality 
Natural Law 
Human Rights 


Communal Principles 



Although this typology reveals the relationship between two significant 
dimensions of ethical controversy, it remains a pretty crude interpretive tool. Its 
categories may seem clear and distinct, but actual moralities are a messy affair. 
They resemble each other in various, sometimes disturbing ways, and often 
overlap. In fact, moralities are in some ways best understood as vocabularies for 
moral judgment and debate, and any given vocabulary can be used to express a 
wide range of substantive positions. 



112 Legal & Moral Constraints on Low-Intensity Conflict 

Consider political realism and common-sense morality, which the typology 
puts at opposite ends of both dimensions. The picture of realism Teson offers is 
historically inaccurate and philosophically incomplete. The kind of realism we 
encounter in foreign affairs, when we get above the level of a vulgar, unthinking 
"my country right or wrong," is one that does not entirely dismiss principled 
constraints, whether these come from one's own tradition (for example, the 
American ethos or the ethic of military honor) or from some putatively more 
universal source (natural law, human rights, "reason," etc.). The realism of 
Treitschke, Niebuhr, Butterfield, Morgenthau, and Kennan recognizes not only 
the prudential considerations of necessity and proportionality, but also the 
principled constraints of morality and law. 

The ethical question, as the realist frames it, is "When should moral and legal 
constraints be set aside for the sake of the national interest (that is, to preserve 
national security or the public safety)?" Realist theories can be usefully classified 
according to whether and under what circumstances they permit prudential 
considerations to override principled ones. An extreme or pure realist might say 
"always," but more moderate versions of realism would introduce progressively 
stricter constraints: "only in foreign affairs," "only in war," or "only in national 
emergencies." In other words, the kind of sophisticated realism that is rooted in 
the idea of reason of State, and that has long been prominent in diplomatic 
thought and practice, is not a purely consequentialist ethic of the national interest. 
It is an ethic of principles that is willing to override its principles when the stakes 
are high enough, and only when the stakes are high enough. The strictest version 
of such an ethic would be one that insisted on fidelity to law or moral principle 
except in situations of extremity. 

Now a constraint-oriented ethic that allows moral principles to be set aside 
in extremity is not so different from the kind of political realism that is willing 
to respect moral principles if the costs are not too high. There is not a big 
difference between a moral theory that says "respect the principles of justice and 
human rights except in extremity, if violating these principles is necessary to 
preserve the community and its laws," and a realist theory that says that "in 
extremity one may (if necessary) override justice and rights." The realist and 
human rights theories reach this common point of agreement from different 
directions, but there is a point of agreement. The only way to really distinguish 
common-sense morality from consequentialist realism is to insist that moral or 
legal principles must be observed regardless of consequences. Fiat justitia, mat 
coelum (Let justice be done though the heavens fall). But despite all his insistence 
on human rights, Teson seems not to want to take this last step, and therefore (I 
would argue) he remains closer to realism than he perhaps realizes. 

Now let's take a closer look at Professor Teson's ethic of legitimacy and his 
application of it to low-intensity conflict. Teson gets himself into needless 
difficulty by making too much depend on the idea of legitimacy. His basic 



Nardin 113 

principle is, I have already suggested, unacceptable: that a State is internationally 
legitimate when it is internally legitimate. The concept of "legitimacy" is not 
one that can be used simply in making moral judgments, much less policy 
decisions. Not only are there other ways of justifying sovereignty, but it is by no 
means clear when either a State or a government is or is not legitimate. 

The viewpoints we label "realism", "common-sense morality," and the like 
are little more than names for theories abstracted from far richer and more 
complex ethical systems — actual, living moralities that are embedded in practice 
and used (and misused) by those who would probably be unable to give any very 
coherent account of the principles underlying their own decisions. The philos- 
opher can identify and dissect these moral traditions, and he can articulate the 
principles that underlie the judgments in which the traditions are used and through 
which they are continually reconstituted. The worst thing the philosopher can do 
is to fool himself into thinking that his constructs are an improved version of, 
and a practical substitute for, the moral traditions they interpret, and to offer these 
constructs as a guide to practice. But of course this is precisely what philosophers 
and other moralists are always doing, and I think Teson falls into this trap as well. 

In the philosopher's abstract approach to concrete ethical issues, all too often 
a merely explanatory scheme is used to criticize or defend conduct. But you can't 
get very far by simply "applying" abstract moral categories and principles. It 
would be better to rely on our laws and our moral traditions, criticizing them 
internally on the basis of self-contradiction (holding a tradition to its own 
principles, so to speak), rather than to make some rational scheme the archi- 
medean point of reference. In considering the propriety of low-intensity opera- 
tions, we need to pay particular attention to U.S. and international law. Morally 
defensible military policies must respect non-consequentialist moral and legal 
constraints, and those responsible for them must be wary of overriding these 
constraints on grounds of "necessity." 

In my judgment, Professor Teson's analysis is conceptually confused but it is 
not, in the end, entirely unsound. Teson relies on a philosophical argument to 
rediscover the common-sense moral idea that when the U.S. engages in low-in- 
tensity operations, it ought not only to give weight to considerations of necessity 
and proportionality, but also to respect those principles that protect individual 
and collective human rights. In other words, ethically speaking, low-intensity 
operations (like other kinds of military action) are constrained by moral con- 
siderations as well as prudential ones. 

Professor Teson proposes a theory to guide policy that is less nuanced than 
common-sense morality and therefore hardly an improvement on it. As often 
happens when a philosopher turns to moralizing, this theory turns out to be an 
abstract restatement of a complex moral tradition or traditions. In Professor 
Teson's theory, the traditions that are restated are those of natural law and 
Western liberalism. It is, of course, possible to pull a lot of different rabbits out 



114 Legal & Moral Constraints on Low-Intensity Conflict 

of this particular hat, and in seeing human rights and justice as constraints on the 
pursuit of interest, Teson has at least got the right rabbit. 

There is, however, a more practical and less dangerous way of seeking to 
secure respect for the principles of justice and human rights embedded in 
common-sense morality, and this is to insist that U.S. low-intensity operations 
respect both U.S. and international law. This does not mean that the relevant 
laws are uncontroversial, or that they are beyond criticism and the need for 
reform. But nothing is more important than improving and respecting our public 
standards for conducting foreign and military policy. And in interpreting the law, 
one must keep firmly in mind the basic idea of legality or the rule of law, and 
resolutely reject higher-law and instrumentalist interpretations that seek to get 
around constraints on the pursuit of moral goals or national interests. 

Finally, we must not forget that there is much to be learned from earlier debates 
about the morality of war and intervention. Because the principles at stake are 
those that have long shaped international relations, the current debate regarding 
the scope and limits of permissible low-intensity operations, especially in relation 
to the norms of sovereignty, is very much a continuation of the old debate about 
armed intervention. 

*Terry Nardin is a Professor in the School of Social Science at the Princeton Institute for Advanced Study. 



Chapter V 

Panel Discussion: International Law and 

State Sovereignty 

W. Michael Reisman, Chair 



PROF. REISMAN: It is quite clear, particularly in light of events of the 
last few years, that whatever you may choose to call the new international political 
order, the phenomenon of persistent use of low-intensity violence has become 
an influential agent in shaping it. It's quite probable that, owing to a number of 
developments, this particular use of coercion could become much more ag- 
gravated and widespread. 

For the great democracies in which, quite properly, political legitimacy comes 
from the people, the phenomenon of low-intensity conflict is particularly acute. 
There is no question that a free people has the common sense to be concerned 
about its security, and will readily mobilize itself in circumstances in which it 
perceives a great threat. It is commonly the nature of low-intensity conflict not 
to pass that particular threshold of public awareness, which means that those who 
are charged with maintenance of security in great democracies may perceive a 
reality that is quite different from that which is popularly perceived. Low-inten- 
sity conflict is frequently conducted in covert fashion and very often the response 
to it has to be conducted in a covert fashion. The great democracies of the planet 
are uncomfortable with the notion of covert action. And there is no question 
that whatever promises of efficiency covert action may have, they must be 
weighed against their effects on democracy itself, and certain other pathological 
features. 

As Prof. Coll said, the phenomenon you are asked to consider has moral, 
ethical, technical, and legal implications. Those implications arise both at home 
in the domestic political system, and at the international level. 

In the last seven years, the International Court of Justice has had two 
opportunities to address this issue. It is generally held that the type of phenom- 
enon which we are considering, low-intensity conflict, does not need to be 
forcibly addressed and at least, in the view of the Court, does not warrant the 
unilateral response that is generally characteristic of self-defense, which is 
authorized in the United Nations Charter. 

At the moment, the same issue is in front of the Court again in a different 
political context, in the Libya v. United States and Libya v. United Kingdom cases. 



116 Legal & Moral Constraints on Low-Intensity Conflict 

In these matters, international law certainly doesn't serve common interests, and 
probably is counterproductive in the sense that it forces those who are targets of 
low-intensity strategies to respond in kind. This is a subject that will have to be 
considered in the course of the next two days. It is one contribution that 
international lawyers and scholars may make to clarification and improvement 
in this particular area. 

Our discussion this morning involves a presentation by Professor Robert 
Turner, and comments by Professor Tom Farer; then a second presentation by 
Professor Fernando Teson with comments by Professor Terry Nardin. [After 
Professor Turner presented his paper, "State Sovereignty, International Law, and 
the Use of Force in Countering Low-Intensity Aggression in the Modem 
World'*, Professor Reisman introduced Professor Tom Farer.] 

PROF. REISMAN: I call on Professor Farer. 

PROF. FARER: Thank you Michael and thank you Bob. 

I love being a commentator. I much prefer being a commentator to being a 
main speaker. No one expects you to be definitive. The main speaker has to hang 
himself out there. He doesn't know from which side you're going to assault him. 

Bob's probably wondering what I'm going to say, and I've been thinking 
about it myself for a while. 

There's a lot that Bob and I agree on. We agree that it's very difficult to bring 
Operation Just Cause within the constraints of international law. And that is so 
whether you define the relevant restraints on the use of force as those embedded 
in the text of the U.N. Charter, or in those to be found in general international 
law and the customary practice of States, which means in the perceptions of 
scholars and decisionmakers as to what is the substance of that law. 

We are both inclined to think that what Bob calls the "long-arm" statutes — 
that is licenses to reach across national frontiers to kidnap people who have 
violated U.S. laws but have been wise enough not to come within the jurisdiction 
of the United States — probably don't contribute to international order, and 
probably do not contribute, on balance, to the interests of the United States. 

We both recognize the importance of reciprocity, the importance of sensitivity 
to reciprocity. Although Bob may approach the notion of reciprocity a little 
more formally than I would, Bob's point in his paper and again in his remarks 
was that any tactic, any justification that we employ, is by the very nature of law, 
international or domestic, available to other authority structures under similar 
circumstances. I think he is making more than a purely formal point about the 
logic of law. It has to do also with the force of mimesis in international relations. 

Forget law for a moment. Just think about a community with a relatively small 
number of actors, which is the international community. Of course, it's larger 
than it has ever been before. There are far more sovereign States, and we have 



Panel Discussion 1 1 7 

additional sorts of participants. There are various intergovernmental actors and 
even individual citizens have become incorporated as active subjects. Neverthe- 
less, the principal actors remain States and, therefore, it is a relatively small 
community. In such a community, certain expectations about behavior emerge, 
and a leading participant in that community, like the United States, strongly 
influences those expectations, i.e., that sense of what kind of behavior is 
acceptable in carrying out national objectives and what kind of behavior is 
unacceptable. The essence of Bob's reciprocity point, then, is the role we 
inevitably play in shaping other nations' perceptions of what they are entitled to 
do in pursuit of their goals. 

In terms of basic values, a conception of what our national goals ought to be, 
Bob and I are very close. And yet, I do find his paper disturbing, and not only 
because of a certain completely unconscious tone of condescension which it often 
assumes in discussing people who disagree with his views. Its least appealing 
feature brings to mind Winston Churchill's comment toward the end of a country 
house dinner of many courses concluding with a pudding. Churchill took a 
mouthful, put down his spoon, glared at the master of the house and said, "this 
pudding has no theme." With a good deal of rhetorical exaggeration one might 
say as much of Bob's paper. While it is short on theme it does have an implied 
world view and a series of discrete propositions. The view that came through to 
me could be summarized as follows: 

The U.S. is a gende giant in a world divided between peace-loving, 
anti-interventionists, ourselves foremost among them, and the aggressive, 
radical, lawless scum. 

I call your attention in that connection to the very first paragraph of his 
executive summary when he speaks of "traditional American values such as 
nonintervention." If you made that statement to any Latin American forum that 
I've ever been in, you would be laughed off the stage: The United States a 
non-interventionary power? Bob is a great enthusiast for executive power in the 
area of foreign affairs. Many of the precedents for the use of executive power 
arise, of course, from U.S. intervention in Latin America. 

I'm not making a normative point here. I'm not saying whether those 
interventions were good or bad. I simply note that we have employed interven- 
tion frequently in this century. We had marines in one or another country in the 
Caribbean basin virtually for the entire period from 1900 to 1933. We liberated 
Cuba from the Spaniards and immediately intervened and occupied it, and only 
left after the Cubans accepted the Piatt Amendment, which allowed us to reenter 
Cuba whenever we chose to. We have used intervention frequendy in the 
postwar period too. We may have used it wisely. We may have used it unwisely. 
But to suggest that nonintervention is part of the American tradition is simply 



118 Legal & Moral Constraints on Low-Intensity Conflict 

to set a historical context for our discussion in a way which grossly distorts history. 
It is true, however, that the American people, including much of its elite, have 
been uneasy about the propriety, as well as the wisdom, of armed intervention 
in the affairs of weaker States; thus we have sought to find benefit to the objects 
of our foreign excursions as well as ourselves. The United States, unlike the U.K. 
or France or Russia, has never contemplated the imperial mission with unin- 
hibited relish. 

The second point that Bob makes, it seems to me, is that in order to circumvent 
the U.N. Charter, or to crawl through its loopholes, the bad guys use low-in- 
tensity conflict strategies. Now, we have used low-intensity conflict strategies 
ourselves. Bob would say we've used them defensively. In some cases — possibly 
in many cases — we arguably have, although the question of what is offensive and 
what is defensive is often a question of how far do you look back. Do you look 
to the immediate event or do you try to put that event into a whole stream of 
interactions between yourself and another country? 

The Iranians have used low-intensity acts against the United States over the 
past few years. The Iranian view, of course, is that if you take U.S.-Iranian 
relations from the close of the Second World War to the present time, the U.S. 
has frequently used low-intensity conflict tactics against Iran, for example, in 
restoring the Shah to power in 1954. 

Again, I'm not trying to make a value judgement at this point. I am merely stating 
a fact, which is that the tactics and strategies which we lump under this heading 
"low-intensity conflict" have been widely employed, and we ourselves have 
employed them. It's not a set of means that are uniquely used against the interests 
of the United States, and that somehow we have not found it possible to employ. 

Third, Bob seems to be expressing a world view which suggests that in 
responding to attacks on the United States using low-intensity warfare methods, 
we should try to live within the substantive and procedural law, and if we 
construe that law properly — that is, the way Bob does — normally we can crush 
the bastards legally. But, if the substance of law gets in the way of our vital 
interests, and we can't make the U.N. or regional institutions do the right thing, 
then we must act outside the law to defend our vital interests. 

While implying an intimate linkage among threats to vital interests, low-in- 
tensity conflict and terrorism, Bob neither defines them nor spells out that 
linkage. The paper assumes that we still have a lot of vicious opponents out there 
in the wide world. What is left totally unclear, however, is whether our enemies 
are enemies because of their methods — and if so, which methods — or because 
of their ends. I think we need to think about that. 

What has struck me over the past several years in which I've participated in 
discussions about low-intensity conflict — I was part of the two-year, multiple- 
meeting project on aspects of low-intensity conflict that Alberto Coll organ- 
ized — was that the sometimes almost frenzied attention to this concept often had 



Panel Discussion 119 

the effect, and sometimes I felt it was designed to have the effect, of preventing 
us from asking ourselves whether the objectives of our opponents, the substantive 
ends of presumptive opponents, were wholly unreasonable or incompatible with 
our interests. We concentrated entirely on the means that presumptive enemies 
employed. 

To give you an example of what I mean: we often talk about the problem of 
the Middle East in terms of radical Arabs using low-intensity conflict against the 
United States. Having so defined the problem, we concentrate on devising 
responsive strategies. Even a very moderate Arab might look at the problem 
differently. He might well say, "this is the way U.S. policy has worked in the 
Middle East: (a) it's worked to enable the Israelis to annex operationally part of 
the occupied territories of the West Bank and to turn the remainder into 
Bantustans, in the process depriving the Palestinians of the rights of citizenship 
in the lands of their birth; (b) U.S. policy has operated to maintain the divisions 
of the Arab world, which were largely laid out by Britain when it was the 
dominant imperial force in the Middle East." In other words, it has functioned 
to maximize Arab weakness and to sustain the concentration of the area's natural 
wealth in the hands of a few greedy and corrupt princes and emirs. Moreover, 
in deciding how to assess and respond to aggression, the U.S. has been completely 
arbitrary in normative terms. 

In 1980 Iraq committed naked aggression against Iran. We assisted Iraq in 
avoiding defeat. In 1990, Iraq committed naked aggression against Kuwait, and 
we responded effectively to thwart naked aggression and to punish the aggressor. 
The U.S. record in the Middle East, is therefore, not one of the evenhanded 
application of international norms. 

Now, let me sum up these somewhat disjointed remarks. Maybe I can pull 
them together. 

First, we need to rethink the larger ends of American policy in the light of 
the new international structures of power and interest. In particular, I think we 
need to address the question: Do we want, and do we think it's in our vital 
interests, to freeze all existing international frontiers, to freeze, that is, the 
allocation of all territories and all resources inherited from eras marked by 
different values, human needs and power structures? It may be desirable to 
attempt to freeze the inheritance; but I don't think we can simply assume that. 

Secondly, I think we should recognize and admit that there's nothing new 
about low-intensity conflict. It is millennia old, and if we're particularly con- 
cerned about it today, we better ask ourselves why? Is there something new about 
it in terms of a threat to the United States? 

Third, I think that we should ask ourselves whether, at least in contemporary 
circumstances, we should resist the temptation of unipolarity — assuming unipo- 
larity actually exists, given the very many constraints on the application of our 



120 Legal & Moral Constraints on Low-Intensity Conflict 

power — and should engage ourselves much more deeply in multilateral decision- 
making. 

My greatest objection to Bob's paper is that when he discusses multilateral 
decisionmaking, what he seems to be saying is: "Let's go first to regional 
organizations or to the U.N. If they do the right thing, that is, if they carry out 
our objectives, then we're happy and we accept that result. If they don't we've 
exhausted our remedies. We have demonstrated we're not fast on the trigger. So 
we are then well positioned to act unilaterally." I think that has essentially been 
our policy over the past twelve years. I think that is why we did not use the 
relevant regional organizations or the United Nations during the Reagan period 
to deal with difficulties like the situation in Central America: We knew that the 
collective judgement of the international community was not sympathetic either 
to our ends or our means. Therefore, we did not truly engage ourselves in 
international and multilateral processes of fact-finding and adjudication. And so 
the question, or at least one of the questions we need to address, is whether it is 
consistent with our national interests and the changed international system to 
engage ourselves seriously in these multilateral processes. 

Now, I must admit that my dislike of certain tonal aspects of Bob's paper may 
have led me to exaggerate our differences, which could foster misconstruction 
of my views. Although low-intensity conflict is not new in world history and is 
a strategy the United States has itself employed from time to time, it does 
constitute rather more of a problem for the United States than for many other 
countries. That is so for three reasons which are at least close to being self-evident. 
One is the extraordinary diversity and consequentiality of our transnational 
interests and connections; by affecting the allocation of power and wealth in so 
many places in so many ways, we are bound to make enemies. Another is the 
immense military power of our country. The third is the prized openness and 
pluralism of our society coupled with the democratic temper and morally 
fastidious self-appreciation of our people. 

American power makes it hideously dangerous for another State, or, for that 
matter, non-State actor, to confront us directly. We are, in other words, almost 
invulnerable to direct military threats. Low-intensity conflict is not the preferred, 
it is the only prudent military strategy available to present and prospective 
antagonists. 

The American character and its institutional expression inhibits our use of and 
aggravates our vulnerability to low-intensity tactics: It would probably be harder 
for the United States than, for example, France to employ terrorist tactics without 
exposure. Exposure would have grave domestic and international political 
consequences. It is presumably easier for agents of antagonistic states or mafias 
to enter the United States and blend with the population than it would be in a 
society with a more intrusive security apparatus, or one that was smaller and more 
homogeneous. However, in light of our freedom from successful terrorist 



Panel Discussion 121 

operations relative to countries like Britain, France, and Germany, this final point 
needs to be contemplated a bit agnostically. 

So while I feel that we have tended in the past decade to exaggerate the 
low-intensity conflict threat to our interests, and feel as well that on occasion the 
threat has been invoked to discourage the contemplation of strategies for dealing 
with difficult States and para-States that combine threats with positive incentives, 
I join Bob in believing that the topic merits continuing concern and that the 
U.S. Government needs a strategy which incorporates relevant moral and legal 
standards. 

I am also prepared to concede that cases could conceivably arise where it may 
be difficult to reconcile the national interest in achieving immediate and decisive 
results with widely shared normative expectations. I hope Bob shares my view 
that such cases will be extremely uncommon, only in part because when we do 
act in ways we would not want others to act and hence cannot justify legally, 
we, as a satisfied, trading State with a powerful interest in an orderly and 
predictable World, pay a medium and long-term price that needs to be weighed 
against predicted, yet invariably speculative, short-term gains. 

Under what circumstances is the collision between what some virile Presidential 
adviser will think it would be immediately useful to do and what States are legally 
entided to do most likely to occur? I venture it will be in cases where low-intensity 
conflict tactics offer a low-cost means of aborting a potential monster problem only 
if they are employed, as it were, in the first trimester rather than the last. For in such 
an instance, low-intensity conflict will collide with the principle of necessity which 
tends to make force precisely the instrument of last recourse. 

Every legal system presumably has its euthanasia exception. It is the exception 
too dangerous to legitimate because it is too susceptible to abuse. So we pretend, 
for example, that there is no exception to the prohibition of killing, except in 
self-defense against an apparently deadly attack. But occasionally juries will not 
convict that horribly battered and terrified wife who kills her battering husband 
at a time when he is resting from his chronic brutalities. By not writing in the 
exception, we place a heavy burden of justification on anyone contemplating 
decisive preventive measures. 

PROF. REISMAN: The program laid out by the organizers indicates that I'm 
to make a few comments, which I'm happy to do, and then I propose to open 
the floor to discussion and to close it a few minutes before this session concludes, 
to invite Professor Turner and then Professor Farer to make some final com- 
ments. 

It's been a very interesting paper and comment. To my surprise, many 
fundamental assumptions are shared by the speaker and the commentator. I think 
they both view law as a body of rules that you apply in response to emerging 
circumstances. You look at a situation, you find out if it is in violation of the 



122 Legal & Moral Constraints on Low-Intensity Conflict 

rules and then you're entitled to do something. Some of us, particularly at the 
New Haven school, tend to view law as a process of making decisions in which 
there is a constant reference to concerns for minimum order in the larger 
community that shapes policies in each instance to the appropriate response. But, 
perhaps, some of you have observed this commonality and may think that there 
is a different way of approaching the issue. 

Professor Turner raises some very interesting and provocative points and 
Professor Farer definitely has engaged them, I think making them quite explicit. 
The first is the issue of reciprocity, which Professor Farer said that Bob Turner 
has presented in a rather formalistic fashion. I actually find their position on this 
issue quite consistent. I think the first line of inquiry we might take is to consider 
to what extent the United States actually operates on the basis of reciprocity. 
Does it have special responsibilities precisely because of its greater strength, and 
the extent to which it is a leader of allies that are a community of nations sharing 
a certain vision of public order? Do we have special responsibilities that require 
or permit us on occasion to initiate changes in law? For example, we refashioned 
the international securities market by insisting that jurisdiction be respected until 
a bilateral or multilateral agreement providing some degree of control over this 
truly international market could be achieved. 

The second point that relates to this is the question of our responsibilities as 
a leader, which Professor Turner drew attention to. This necessarily assumes that 
our factual view of what is correct is shared by other members of the community 
that is identified with us, and hopefully, by other substantial parts of the planet. 
Both speakers address this problem in different contexts. Professor Turner 
assumed that everyone thinks we are the good guys for insisting that Libya deliver 
the agents who may have been involved in the destruction of Pan Am Flight 
103. I'm not sure that we are perceived that way. Next week the International 
Court of Justice will respond to Libya's request for interim measures and, as a 
lawyer, I know you never make predictions about what courts are going to do. 
I think that there could be some surprises in this. 

On the other hand, Professor Farer draws attention to the discrepant views of 
Arabs as to what United States behavior has precipitated in the Middle East. This 
raises the question to what extent one can operate unilaterally. Can one 
effectively test whether one's view is askew or faithful to reality, or whether it 
simply represents the best interests of the community? 

Both Professor Turner and Professor Farer focused on countries and on 
governments. At the very end of his remarks, Professor Turner, in discussing 
assassination, I think, disaggregated the general notion of Iraq. Were we at war 
with the entire country or with the Ba'ath party? Quite different strategic 
implications flow from that distinction. We may want to consider the extent to 
which such actions would disaggregate States, and begin to look at structures 
within them. 



Panel Discussion 123 

Professor Turner drew attention, in a very provocative fashion, to the 
emergence of certain new substantive natural law principles. I know that several 
speakers over the next sessions are going to be addressing those issues. They may 
even want to address them now in the coming discussion. 

Professor Turner presented a very interesting historical review of sovereignty 
in his paper. He described its emergence with Jean Bodin and Thomas Hobbes 
and the transformations it has undergone through several centuries. His analysis 
of the radical transformation of sovereignty in this century raised the question 
whether the notion has changed to the point where it has major implications for 
the legitimate use of force by one State against another. Bob seemed to suggest 
that, in some circumstances, the emerging global concerns in favor of democracy 
would warrant actions on its behalf that would otherwise be precluded by an 
understanding of sovereignty that had not been altered by the equation of political 
legitimacy with democratic rule. He discussed the issue of recognition as a tool 
and suggested that we use it quite vigorously in favor of democratic governments 
and against undemocratic governments. 

Professor Turner reminded us of the argument that democratic States don't 
tend to engage in aggressive wars. Professor Farer, by implication, casts certain 
doubts on that proposition. Are there still imperial democracies? Democracies 
quite intoxicated with their internal democratic processes? 

Professor Turner presented a rather textual interpretation of the Charter based 
on its historical meaning, but did not speak, at least in the presentation this 
morning, about subsequent illumination by the General Assembly. For example, 
he neglected to mention the definition of aggression, or the illumination of the 
Charter by the International Court of Justice in the Nicaragua case. To what 
extent should we address the difference between a textual interpretation of the 
Charter and its subsequent illumination? 

Finally, Professor Turner raised the issue of assassination. Although he was at 
pains to define assassination, I think that many scholars would not extend it to 
the targeting of the military and political leadership in the course of war. That 
seems to me to be something materially different than targeting a political leader 
in peacetime. But the very forceful arguments that he made, I think, will require 
us to address whether there have been changes, particularly in the notion of 
sovereignty, that make assassination a conceivable option for democratic regimes. 
I confess I have great reservations about it. I'm sure that many would like to 
discuss it. 

Professor Farer's observations, though limited to 15 minutes, managed to 
cover quite a few points in addition to a very skillful review of Professor Turner's 
presentation. He insists that our historical record belies the claim that we are not 
interventionists. He does, however, admit that he uses the word "intervention" 
to mean any use of force abroad without considering its merits or legality. He 
advises us in the future to focus not simply on the techniques used by our 



124 Legal & Moral Constraints on Low-Intensity Conflict 

adversaries, but, on their objectives and whether those objectives are entided to 
some accommodation. He urges in particular, that we rethink certain setded ideas 
including our commitment to fixed borders and the notion that low-intensity 
conflict is new. He also encourages us to resist the temptation of unipolarity in 
favor of multilateral decisionmaking. 

This is a very rich range of subjects that have been presented to us for 
discussion. It's my pleasure now, to open the floor for discussion. 

MR. COLLINS: I only have one quick question. Would you please talk a little 
bit about the pros and cons of the U.S. support for coups which violate the 
sovereignty of foreign countries? We have done this a number of times in recent 
years. 

PROF. TURNER: This touches on Tom's disagreement with my view that 
the U.S. has been historically opposed to intervention. I still feel I'm right on 
that. Early in my paper, I noted that after reviewing a draft of the Monroe 
Doctrine, Thomas Jefferson wrote to the President that we ought to take 
advantage of this opportunity to declare our opposition to the practice of 
intervention by one State in the internal affairs of another. I think that has 
continued to be a principle held dearly by the American people. Even when the 
Roosevelt administration gave the Doctrine an interventionist cast, it was in 
response to British threats to employ military means to compel Latin American 
debtors to honor their obligations. The role of hemispheric policeman, assumed 
to forestall transatlantic meddling by the European powers, was repudiated by 
the Clark Memorandum. My argument is, yes, the United States has intervened, 
particularly in the post- World War II era, but for the most part, it has intervened 
in a counterbalancing manner. That is to say, to level the playing field. The classic 
case is our intervention in Chile against Allende. What is not well known, but 
is fairly easy to document, is that the Cubans were pouring money and influence 
into supporting Allende before he came to power. My sense is that what the 
United States was attempting was to balance the playing field to promote the 
chances of a democratic opposition with newspapers, and parties and so forth. 
It's troublesome any time you do it. Certainly, we ought never to overthrow 
other governments because we don't like their economic philosophy. But during 
the conflict with the Soviet Union, when the Cominterm or Leninist States were 
pouring money in on one side, I don't think it was immoral for us to go in on 
the other side to try to balance things out, just as a general principle. 

PROF. REISMAN: So Professor Turner's answer to Mr. Collins' question is 
that intervention is justified when it is done responsibly to create a level playing 
field. 



Panel Discussion 1 25 

PROF. TURNER: Yes, that's right. 

PROF. REISMAN: Tom, do you want to respond to that? 

PROF. FARER: I think we should not seek to overthrow democratic govern- 
ments. How is that for a rule of thumb? 

PROF. REISMAN: Is there a corollary? 

PROF. TURNER: How about non-aggressive democratic governments? 

PROF. FARER: The truth is I'm not a reflexive anti-interventionist, and I'm 
a very typical American. You see something you don't like, you say, let's do 
something about it. And so, although I support our involvement in international 
procedures which tend to restrain intervention, I do so always with a certain 
sense of ambivalence. Did I want to get rid of Idi Amin? Yes. I did want to get 
rid of Idi Amin. I also wanted to get rid of Pol Pot, and so I, of course, wouldn't 
have supported Pol Pot's representative at the United Nations as we did for many 
years. 

I think many people here have been or are involved in policy. You know, 
policy is guided by certain broad directives, and that's why I started off with a 
rule of thumb. We should not intervene to overthrow democratically elected 
governments. Unfortunately, this principle is complicated by the fact that 
popularly elected regimes can go rotten, as recent developments in Peru seem 
to suggest. But, the view that a past election victory confers legitimacy on a 
regime implies that support for insurgents opposed to it is illegitimate inter- 
vention. So, the connection between the legitimacy of sovereign governments 
and the legitimacy of foreign intervention is sufficiently ambiguous to complicate 
the use of an inflexible general principle to arbitrate our foreign policy decisions. 
Our inability to discern whether the emerging world order will be unipolar or 
multipolar does nothing to simplify this policy predicament. Nonetheless, I 
would persist in maintaining that the use of highly coercive forms of intervention 
to advance interests of moderate importance is probably inconsistent with our 
larger national interest, which is increasingly dependent on international co- 
operation. 

PROF. REISMAN: If I may make one brief response to that. I think it's wrong 
to ask the question in terms of military intervention. We're in a very inter- 
dependent system, and we're a very large actor, and we are influencing behavior 
in smaller States all the time. There's no way we can avoid doing it. In this respect, 
if you talk about it in nonmilitary terms, international politics is constant 
intervention into the affairs of other States. And the purpose of the intervention 



126 Legal & Moral Constraints on Low-Intensity Conflict 

is to force them to change in ways that usually discriminate in favor of the State 
that's intervening. 

I think as a general rule, we should use the power that's available to us in this 
regular process of interaction to encourage the emergence of democratic govern- 
ments that honor human rights. This is desirable because there is a fair amount of 
evidence that these governments are better citizens of the international community 
and because human rights have a value independent of other considerations. 

RADM LEMOYNE: Chuck Lemoyne. I'm with the Special Operations 
Command. 

I would like to follow up on your comment, Professor, about low-intensity 
conflict. I think from the military perspective, we tend to view it, not as a discreet 
action, but as an environment in which the military plays only a small part. Ideally, 
the smallest of all parts. All those other instruments of power are brought to bear 
on a daily basis in ways that we generally are never publicly conscious of. So, 
I'm afraid of defining low-intensity conflict as a military campaign. From a 
military perspective, we're not comfortable with that. We see it as an environ- 
ment in which the economic and political instruments of power should be given 
full play. 

PROF. REISMAN: I would add also that in the book that I did with James 
Baker — the one who is sitting in the back of the room, not our Secretary of 
State — we extended that definition to include diplomacy. All of these factors are 
instruments of power that can be used coercively at various levels of intensity, 
and should be examined. 

Thank you, Admiral Lemoyne. 

PROF. SARKESIAN: Sam Sarkesian. Loyola University, Chicago. 

I hope at some point we will consider the operational implications that these 
rather abstract notions such as just war and sovereignty have for our people on 
the ground. We need to be clear about these implications because they require 
us to adhere to moral and legal standards not likely to be shared by our opponents 
in the grim arena of low-intensity conflict. 

I would also hope we can acknowledge that there are different strategic 
cultures which view the law of war very differendy from us. They may even 
interpret the United Nations Charter in a completely different way. I would 
venture to say that there are other peoples who perceive nothing morally or 
legally problematic in low-intensity conflict. 

PROF. REISMAN: I think these are very appropriate observations. Perhaps 
our speakers could address them. Tom, would you like to start? 



Panel Discussion 127 

PROF. FARER: I'm not persuaded that there are different strategic cultures 
out there because, as I said, I think that we ourselves have employed most of the 
measures that are on the list of unconventional operations. We have, occasionally, 
engaged in at least attempted assassinations — Cuba, case in point, and probably 
a successful hit against Patrice Lamumba in the Congo. There are, however, 
differences in culture out there which sometimes result in a conflict of interest. 
The Fatwah, which Khomeini declared against the author Salman Rushdie, who 
is a resident of the United Kingdom, is totally inconsistent with our notion of 
human values, with our Constitutional values and, as far as we're concerned, 
with international law. I'm not sure that an Iranian diplomat would deny that. 
He would just say, this is a case of a clash of values, and we, in our clashes, are 
fairly open. For example, when it comes to, let us say, the treatment of women, 
Saudi Arabia simply says, we reject the western view. That's all. They refused to 
vote in favor of the universal Declaration of Human Rights back in 1948 because 
the nondiscrimination provisions were inconsistent with Muslim values as the 
Saudis construe them. 

But when it comes to basic questions of international order such as the use of 
force across national frontiers, I think there is considerable commonality of views. 
Now, with respect to democracy, the octogenarian leadership of China is a 
holdout. They said so very frankly at the General Assembly. They do not accept 
our conception of the legitimate State. Whether this is a general view in China 
is another question. I think all of us agree that representative government is more 
widely esteemed than it has been at any moment in history. Indeed, I would 
probably put it more strongly than even Bob, and certainly Michael, who is 
unusually muted for Michael on this point, that there is very good deductive 
evidence and a reasonable amount, although much less, of empirical evidence 
that democracies are less aggressive than other regimes. The most important point 
is that democracies can form secure communities of States that have ceased to 
think of each other as potential adversaries, which fundamentally transforms their 
relationships and their ability to allocate resources. So I think there is a very strong 
national interest in promoting the growth of an authentically pluralistic system. 
But, democracy is not a universal culture. There are still fascists. They don't call 
themselves fascists, perhaps quite so frequendy, but there's still a fascist culture 
out there in Latin America certainly, in eastern Europe, in Asia, and other places 
but I'm not sure that that affects the way in which we fight with each other. It 
does affect our grand strategic ends. 

PROF. REISMAN: Very briefly, I think there are very substantial differences 
in strategic culture over the use of force, when licit contingencies arise, and I 
think it poses a major problem. 

We have very litde time left. I think it would be only fair under the circumstances, 
to give Professor Turner a chance to make the concluding remarks. 



1 28 Legal & Moral Constraints on Low-Intensity Conflict 

PROF. TURNER: There are a number of issues we didn't discuss like the 
problem of anticipatory self-defense. For years, there was strong argument that 
you ought not to allow anticipatory self-defense because it could be used for 
aggression. In an era of weapons of mass destruction, where you know your 
neighbor may be getting ready to dump bacteriological contaminants into your 
water supply, I think we have to recognize that States have to be able to defend 
themselves before they suffer a million casualties. How you draw that line is very 
hard. I've talked a little bit about the pros and cons. I don't have an answer to 
it. 

I've thrown out a couple of radical ideas like telling the nondemocratic States, 
we won't commit aggression against you, but we're not going to give you all the 
benefits of membership in the world community, until you allow your people 
to vote and choose their own government. It's an idea that I've been playing 
around with for a good ten years. I think it looks more attractive today than it 
did then. I'm not sure it's the right answer. 

On the idea of targeting radical elites if they commit aggression, I'm not at all 
sure I'm right on that. I am sure that it's in our interest to rethink some of our 
traditional views. We have now made aggressive war a crime, but we don't really 
deal with it as a crime. We didn't even hold Saddam Hussein accountable for 
the aggressive war against Kuwait. If there was any time when there should have 
been a war crimes trial, this was it. I'm not sure that Nuremberg survives as 
customary law given the way the world community has acted, although the 
Europeans unanimously called for trials. The House and Senate in this country 
did. There are problems. That troubles me because I think despite the ex post 
facto problems with Nuremberg, the principles enunciated there were very 
positive ones and treating aggressive war as a crime is, I think, one way of 
deterring it. But if we respond to the aggression by slaughtering a bunch of 
conscriptees and starving a bunch of women and kids, we're not going to deter 
it, so I would hope that some of you will give this issue some thought. I'm not 
at all sure I have the answer to it, but I am convinced we need to think it through 
further than we have, and I throw this out as one way to approach it. 

PROF. REISMAN: The second session this morning will begin with a presen- 
tation of the paper by Professor Fernando Teson, followed by comments by 
Professor Terry Nardin. [Professor Teson presented his paper, "Low-Intensity 
Conflict and State Sovereignty: A Philosophical Analysis."] 

PROF. REISMAN: Thank you very much, Professor Teson, for that very 
systematic presentation of this issue from the perspective of moral theory. 
To comment on Professor Teson's paper, I call on Professor Nardin. 

PROF. NARDIN: Thank you. 



Panel Discussion 129 

Professor Sarkesian wanted to know when we would get to the operational 
level. We're not there yet. 

I suppose you could say that our debates are on three levels: the operational 
level, the policy level, and the philosophical, or what we might call the 
psychedelic level. That may sound hostile to Professor Teson, but as you will 
soon discover, I'm up there in the clouds with him. 

Professor Teson is arguing, as I think is correct, for strict moral limits on 
low-intensity operations, on the grounds that it's as important to respect human 
rights in these activities as in conventional warfare, but I think there are problems 
with the way he goes about making his case. 

Specifically, what I want to argue is that you can't make this kind of case by 
operating at the level of philosophy . You can't develop a philosophical theory 
of legitimacy and hope to get any kind of policy guidance, not to mention 
operational guidance out of it. When you try to do that you can get bogged 
down in philosophical abstractions. In fact, I think that the legitimacy theory that 
he offers is too elastic and permissive. In its place I would propose the very 
obvious, plain, probably stupid but nevertheless, in my case, firmly held view, 
that we simply pay more attention to the traditional constraints of international 
law and try to make sure these constraints are interpreted properly, and that they 
are reflected in United States law and military practice. 

Let me just state very briefly and blundy my view about this. This is a 
complicated view. I tend to see international law itself as an ethic of international 
relations. I think this ethic is undermined by moral theories that make respect 
for international law subservient to moral principles. The principles of legality 
and the rule of law that are embodied in international law, in the American 
Constitution, in American law, and American military law are most commonly 
undercut by various kinds of realist arguments that would, too quickly, substitute 
the pursuit of the national interest for measured respect for our legal traditions. 
There is another way in which this respect is undercut. And that, I think, is 
reflected in the kind of liberal idealism which I share as a value, that's represented 
in Professor Teson's paper. Whether we call this respect for human rights, or 
natural law or higher law, if we derive from this ethos the argument that our 
unmediated view of what is right or just can be substituted for judgments that 
are made on the basis of a consensual body of rules that's come down in the 
international community through the centuries, then I think we are just as much 
troubled with liberal idealism as we are with political realism. And this is also 
true if we prefer, as does Professor Reisman, to call this a consensual body of 
processes and procedures for generating consensual policy outcomes. That's my 
main point. 

I'd like to now address some more specific points in Professor Teson's paper. 
First of all, definitional problems. I think he gets off to a bad start by defining 
"sovereignty" as the monopoly of coercion granted to a government by the 



130 Legal & Moral Constraints on Low-Intensity Conflict 

citizens who reside in the State recognized by international law. This is a 
multidimensional definition, but as you can see, it begs the question because it 
defines sovereignty in terms of legitimacy. In fact, what Professor Teson is 
concerned to argue, is that we ought to substitute for sovereignty a concept of 
legitimacy. In other words, we ought not to be so concerned with State 
sovereignty, because that protects nasty regimes. We really ought to be concerned 
with protecting legitimate governments and legitimate States and undermining 
those that are not legitimate. You certainly can't settle such a controversial 
proposition by a definition. I don't mean to imply that he does, because he also 
argues the case, but there really is a problem with the definition of sovereignty. 
If you link it too closely to legitimacy, you have no argument. What I would 
want to say is that the plain meaning of "sovereignty" is "Statehood." This has 
a status in the international system. It's defined by international law. It has nothing 
to do with moral chains. Sovereignty, I would argue, is absolute in one sense. 
It's not absolute in the old fashioned sense that a State can do anything or that a 
leader can do anything. That's simply a misunderstanding. Sovereignty is what- 
ever powers are reserved to the State. They can be duly limited by constitutional 
constraints. They can be limited by international law. They change all the time. 
The United States is no less sovereign today because it has given its assent to 
human rights instruments, than it was before 1945. So the concept of sovereignty 
doesn't change just because there are limits on State power. When I say that 
sovereignty is absolute, I mean that it is a premise of the State system. If States 
aren't sovereign, then there's no State system anymore. There would be a single 
global State. If we maintain a system of separate, sovereign States, we can talk 
about various kinds of morally justified limitations on State sovereignty that are 
real, because they're incorporated in international law. But State sovereignty will 
persist, and I think we have to be very careful about the terms in which we're 
going to violate its norms. 

Let me then close by making a few points about the main thrust of Professor 
Teson's argument, which has to do with this notion of legitimacy. I think he 
gets himself into needless difficulty by making too much depend on the idea of 
legitimacy. I've already suggested that I believe his basic principle to be unac- 
ceptable. Namely, that a State is internationally legitimate if it is internally 
legitimate. That's another way of saying that sovereign rights can be respected 
only if a State is internally legitimate. 

As I've indicated, there are other ways of justifying sovereignty. But more 
importantly, the notion of legitimacy is a difficult matter. It's by no means clear 
to me, anyway, whether a State or a government is or is not legitimate. The 
concept of legitimacy, in other words, is not one that can simply be used in 
making moral judgments, much less policy decisions. The problem here, once 
again, comes from trying to move too rapidly from a philosophical analysis down 
to some kind of direct guidance over conduct. The theoretical extractions that 



Panel Discussion 131 

we label human rights, realism, and so forth are really, in my view, little more 
than names for far richer and complex ethical systems, actual living moralities 
that are embedded in practice, used in making decisions and reconstituted by 
those decisions. And, moral tradition is an ongoing thing. International law has 
some stability, but it is not immutable. What the philosopher can do is to identify 
and dissect these ethical traditions, and try to articulate the principles underlying 
them. This is a large part of contemporary philosophical practice and can be very 
helpful. The worst thing a philosopher can do, in my judgment, is to fool himself 
into thinking that his constructs are an improved version of, and therefore a 
practical substitute for, the moral traditions they interpret, and to offer those 
constructs as a guide to practice. 

Imagine this room as Plato's cave. You are prisoners in the cave. You are 
chained to your desks. You are looking at the screen at the front of the room 
and the staff of the Naval War College is in the back with a projector, playing 
images on it. You live this way indefinitely, and after a while you become 
connoisseurs of what's going on the screen. You can correlate movements and 
so forth. We philosophers are not chained. We can face you. You can't turn 
around. We see what's really going on. Furthermore, we can go outside this 
room. We know what's out there in the bright world of truth, illuminated by 
the sun. When we come back, we can tell you about all of that, and you may be 
impressed, and you may be amused. But, if we try to give you advice about what 
you know best, which is how to predict the motions of the shadows on the 
screen, you will know that we're talking out of turn; that we have nothing to 
say about that level of practice because the kinds of questions that we're asking, 
the kinds of things that we're saying, are in a different realm altogether. 

Certainly, the philosopher's task is critical , but I would suggest that we need 
to criticize the ease with which ostensibly moral views are used to undercut the 
kind of common sense, shadow wisdom if you want, not truth, but shadow 
wisdom of international diplomatic law and practice. In my opinion, despite all 
of its deficiencies, this shadow wisdom is nevertheless a far more reliable guide 
to military conduct, and therefore, by implication, to the conduct of low-inten- 
sity operations, than the abstractions of the philosopher. When I said in the 
beginning that I believe international law is itself an ethic, I did not mean that it 
can't be criticized from the standpoint of the national interest, or from the 
standpoint of the noble ideals of justice and human rights that Professor Teson 
enunciates. I wanted instead to emphasize that those critiques can not do more 
than provide a basis for the reform of our common traditions, and here I mean 
not simply our common traditions as officials or citizens of the United States, 
but also our common traditions as members of what is now a very ancient society 
that, despite all the talk about a new order, shows promise of persisting into the 
future. 



132 Legal & Moral Constraints on Low-Intensity Conflict 

My final point then would be, I think, one that most of us share, which is that 
the current debate about the moral limits of low-intensity operations, especially 
in relation to the norms of sovereignty, is very much a continuation of the 
absolutely classic debates about the ethic of State power that go back to the 
Renaissance and beyond. In a more proximate sense, and I think Professor Farer 
brought this out quite well, we are engaged in more familiar debates about things 
like the limits of American armed intervention . Since I've revealed myself as a 
stick-in-the-mud conservative here, I will say that not only do we have to place 
a lot of reliance on international law, we have to be historians. We have to go 
back and look at the debates of the preceding couple of decades. There's probably 
more there to be learned than we realize. 

Thank you. 

PROF. REISMAN: Thank you very much Professor Nardin. 

As you will recall, my function as chairman is to provide a brief summary of 
the exchanges in the panel before opening the discussion up for questions and 
comments from the floor. 

This has been a particularly interesting and intriguing exchange of views and, 
like the previous panel, I think an observer would find much more in common 
between the two speakers than they, themselves, may have appreciated. And, at 
the same time, there were some very interesting divergences. 

Professor Teson undertakes to develop, using the techniques of moral philos- 
ophy, a theory for the circumstances under which it is appropriate to conduct a 
low-intensity operation, which he presents in terms that, I think, are quite 
congruent with those used by the practitioners of the art. He is careful to say that 
this is an exercise in moral theory and not an exercise in prudent policy or 
jurisprudence, that is, an explanation for those who must make decisions as to 
when and under what circumstances to take action. A moral theory tells you 
whether something is right, but doesn't necessarily tell you whether it's prudent 
in some circumstances to do it. He also suggests, since his view is framed in terms 
of moral theory, that it's not a theory of international lawfulness. But, in fact, I 
think Professor Teson is caught up here by his own training as a lawyer, and as 
an excellent jurist. His selection of many of the terms make this theory intersect 
at critical points with international law, and Professor Nardin may be fair in saying 
that it tries to do more than philosophy can. Whether the theory is sound or not 
is something we will have to decide. The word "sovereignty" is not necessary 
for the theory. It would be enough to say that one could mount a low-intensity 
conflict if a State lacks legitimacy. Linking that to sovereignty indicates that the 
Professor is concerned here with a fundamental postulate of classic international 
law, and that is that one State does not violate the sovereignty of another State. 
And, the notion of human rights also leads to an intersection between moral 
philosophy and international law. I don't say this critically, but I think that these 



Panel Discussion 133 

considerations do make it appropriate to consider this theory not only under the 
rubric of moral philosophy, but also in terms of its adequacy as a praxis, as a guide 
for those of you who, at some point, may have to make the difficult decision 
whether to engage in low-intensity operations. 

Professor Teson rejects the philosophy of normative realism, which reduces 
policy to an expression of interests, and proposes a range of conditions that must 
be met if these operations are to be considered morally justified. He demands 
that the ends of such actions must be defensible in terms of just war theory. He 
also argues that they should not be directed against sovereign States. This becomes 
a point of central importance in the Professor's argument because a distinct theory 
of internal legitimacy, developed extensively elsewhere in his work, is employed 
to assess the validity of a nation's claim to sovereign status. The operations should 
also respect human rights. They should be necessary and proportionate, and 
comply with minimal forms of decency as to their mode of implementation. 

Professor Teson's invocation of proportionality and necessity converges with 
the recommendation that Professor Nardin makes of a practical guideline since 
those are the classic criteria of international law for military operations, but they 
are standards that are very difficult to meet in low-intensity conflicts. I was struck 
when he was speaking by the fact that so much of conventional military conflict 
is not massive, simultaneous collisions of two armies, but in fact is a congeries of 
many small engagements, any one of which might look very much like a 
low-intensity conflict. 

Professor Teson concludes that in the world we want to live in there is no 
place for tyrants. But, obviously the problem is how we get rid of them, and 
that's where the methods of low-intensity conflict come in. The Professor's 
concern that a number of strategies might violate some principle of moral 
philosophy or virtue may be difficult to reconcile with his desire to see the world 
rid of tyrants. 

Professor Nardin's critique is very interesting and I think, quite fair, though 
I'm not persuaded by all of it. His view is that this moral theory does not provide 
a method that is appropriate as a praxis for the lawyer. Instead, he would look 
to traditional restraints. But, the traditional restraints include the notion of 
sovereignty, which Professor Teson felt he had to develop a method of explaining 
away, in certain cases. The traditional approach deals with proportionality and 
necessity, and I'm not at all certain that international law provides clear guidelines 
for low-intensity conflict in these areas. If it did, I'm not sure there would be 
much reason for us to convene for these two days here. 

Though Professor Nardin criticizes Professor Teson for his definition of 
sovereignty as the active recognition of States which are internally legitimate, he 
has another definition that I think is as selective in its way as Professor Teson's. 
He is critical of a notion of sovereignty that would encourage States to judge 
each other in terms of internal practices. He suggests that we adhere to a 



134 Legal & Moral Constraints on Low-Intensity Conflict 

traditional interpretation of sovereignty, but if that is the case, one wonders how 
it is possible to respond to a low-intensity conflict. 

Professor Nardin concludes with Plato's extraordinarily powerful image of the 
prisoners in the cave, whose understanding is limited to the world of surface 
appearances presented by the ordinary round of mortal existence. He suggests 
that philosophers can see beyond what we lawyers who are the prisoners in the 
cave can see. In the Republic, after the description of the prisoners in the cave, 
Socrates' interlocutor says, "you have given us a strange image," to which the 
philosopher responds, "even ourselves, even ourselves." These limitations may 
apply to philosophers as well. I think the more general difficulty here is that we 
all make decisions, those of us who undertake the responsibility for doing it, on 
imperfect knowledge. We do the best we can, but that knowledge is quite 
imperfect. 

The alternative that's proposed here is not the systematic approach Professor 
Teson suggests, but the shadow wisdom of international law and diplomacy. One 
question you may wish to address in your discussion is whether that provides 
sufficient guidance for us to bypass some of the larger questions that Professor 
Teson has raised. 

With that brief summary, I would like to throw the floor open. We will have 
an open discussion. Please feel free to return to issues raised in the previous panel 
as well. As in the previous panel, we will give the speakers a chance to respond. 

PROF. ROBERTSON: Professor Robertson, Naval War College. 

I'd like to address Professor Teson about his quest for legitimacy, and bring it 
down to the operational level. In Peru a duly elected president has now seized 
power, arbitrarily imprisoned his political opponents and the media reports that 
he has the support of something like 70 to 80 percent of the population. How 
do you address legitimacy in that framework? 

PROF. TESON: I'm glad that you raised that issue. I am also concerned about 
what's going on in Peru. It's a very important issue because legitimacy, as I define 
it, and as I think is defined generally in moral and political theory, requires more 
than the sanction of the ballot box. A democratically elected government is one 
requirement, but not the main one. The main requirement is respect for the 
human rights of the citizens. Therefore, we can have two variations on this theme 
of compromised legitimacy. An initially undemocratic government may respect 
the rights of its citizens, as would a benevolent monarchy. But the paradox here 
is that if the government respects the rights of its citizens, it will also respect the 
right to vote it out of office. Therefore, the right to elect one's own government 
is contingent on the respect for human rights. 

The converse situation, what I think is happening in Peru today, is that of an 
initially democratic government, which suspends or cancels individual liberties 



Panel Discussion 1 35 

and violates human rights. We have to take circumstances into account, but a 
State that does these things is becoming illegitimate. 

I would respond also to your important point about the 70 or 80 percent 
support that he seems to have. It might be true, but I always distrust those polls. 
Dictators have always said that they represent the people. I have never met a 
dictator who doesn't claim to represent his people. But, more important than 
that, the preservation of human rights is not subject to counting heads. 

PROF. REISMAN: Prof. Wakin? 

PROF. WAKIN: Mai Wakin, United States Air Force Academy. 

I'm a bit uncomfortable with Professor Nardin's use of Plato's metaphor of 
the cave. It's not a critical point, but it's one that seems to be relevant. I can agree 
with you that international law is something that we must pay very close attention 
to and that at the least, serves as a guide for what we do. It seems to me that it 
always has been influenced by moral philosophy, and sometimes quite directly. 
When we get the law of warfare, for example, clearly moral philosophy has played 
an enormous role in determining conduct toward prisoners and non-combatants. 
It seems to me that the principles underlying these rules of conduct come from 
philosophical considerations before they are established in international law. So, 
I'm a little uneasy with the suggestion that the law is only shadow wisdom as 
distinguished from the knowledge of philosophers who have escaped the cave. 

PROF. NARDIN: You know, these are such complicated issues. First of all, 
a lot of the moral wisdom that we draw on, and that's reflected in international 
practice and international law, is not necessarily philosophical. There are lots of 
ways of talking about moral issues, and often when philosophers discuss them 
they aren't being fully philosophical. They're not simply examining presupposi- 
tions and trying to relate morality to other kinds of knowledge. They're not 
seeking for the foundations of moral beliefs. These are activities that I consider 
legitimate philosophical pursuits. They are arguing about moral issues, often in 
a very casuistic way, which is not my ideal of philosophy. They're dealing with 
particular cases and so on. So, there's no question that part of this larger, ongoing 
debate isn't a technical matter limited to professional lawyers. So, I don't want 
to be misunderstood on that point. 

I'm concerned about a particular kind of attitude toward moral philosophy 
that is very prominent in the United States these days, and which I think plays 
into the kind of interventionism that is also part of our tradition. That is, to be 
struck by bright ideas and to think that one can substitute one's insight for a 
process of negotiation and paying attention to the past. I would call this a kind 
of a rationalistic approach to things, and I think too often when philosophers 
write about international affairs, they want to short circuit that established process 



136 Legal & Moral Constraints on Low-Intensity Conflict 

and get right from principles to results. In fact, the kind of discussion that we 
have, which has always gone on in international law and in diplomacy, is one 
that draws on many sources to maintain and debate a never agreed, always 
controversial, but evolving set of standards. In that kind of discussion, philos- 
ophers, of course, do have a contribution to make, if only to say something that's 
clearer and purer than the more pragmatic discourse that follows on and 
immediately complicates it. 

PROF. REISMAN: Professor O'Brien. 

PROF. O'BRIEN: Bill O'Brien, Georgetown University. 

I would like to follow up on the question that Admiral Robertson asked. I'm 
troubled by this business of legitimacy in cases of extreme emergency. Would 
you say that Abraham Lincoln didn't have any legitimacy? He certainly suspended 
legal rights, such as habeas corpus, in a peremptory fashion. He said he was 
compelled to such measures by the gravity of the national situation. 

PROF. TESON: Well, we can't stop making principled judgments because 
there are hard cases. I'm willing to concede to Professor Nardin, that in judging 
those hard cases, the presumption should be against intervening. If Peru is a hard 
case, maybe the presumption should be in favor of caution and restraint. I'm 
willing to concede that. But, it's important that my concession not be taken to 
mean that the principles do not have great force in very clear cases. Even in the 
more ambiguous case of Peru, my principles, I think, would provide guidance. 
Now that we are considering the applicability of general principles to particular 
cases, I would like to respond to the criticism of my views as excessively abstract 
and insufficiently concerned with operational problems. I don't think it is 
warranted. In my paper, I discuss a number of real life examples, ranging from 
the Israeli abduction of Eichmann to the Bay of Pigs to the possible assassination 
of Saddam Hussein. I'm willing to analyze any particular operation in terms of 
these principles. The horizontal contract within the nation, the vertical contract 
between the regime and the people, the concept of legitimacy that flows from 
them and the concomitant understanding of international sovereignty all provide 
guidance for the evaluation of particular operations. I'll be happy to accept the 
challenge of applying those principles to any case you may suggest. 

PROF. REISMAN: Professor Farer. 

PROF. FARER: I just want to tease Fernando to amplify a little bit what it is 
that he's getting at. I suppose that the principles and rules that we've inherited 
from the continuing history of relations between human communities, which 
we call international law, incorporate the moral perceptions of these com- 



Panel Discussion 1 37 

munities at the time. Now, when you propose a separate higher order frame of 
moral reference as the ultimate arbiter of these relations, it leaves me uncertain 
as to where the distinction may be found between the results you would achieve 
by applying your criteria and the results that would be achieved and the things 
that ought to be done, when applying the perceived legal criteria. When does 
that distinction arise and what should one do about it? Are you trying to identify 
the way in which the law should be moving? Do you mean that a discrepancy 
between the law and your principles should be cause for its modification? Should 
it be considered grounds for unilateral initiatives, as proposed by Michael 
Reisman, in order to see whether we can shape a new consensus? If you think 
that the global consensus represents too low a common denominator, would you 
be prepared to assert our peculiar moral traditions over others that conflict with 
it? Or perhaps you mean that philosophy and morality are a frame of reference 
for extreme cases, such as euthanasia. Let's not pretend it's law, let's recognize 
the law takes care of the normal case, it doesn't take care of the extreme case. 
When we're faced with the extreme case, we need some backup, some norms 
of mitigation, as it were. And so, I'd like to see just which of these possible 
interpretations you think would be appropriate. 

PROF. TESON: Let me say, Tom, that I was vastly relieved when I was 
commissioned to write this paper, because for the first time in my career, I was 
freed from the cave and could engage in moral analysis without being concerned 
with international law. My background is that of an international lawyer, so the 
fact that I view this process as a philosophical exercise to begin with is not 
unimportant. Whether or not current international law reflects that is a separate 
question, and I think it's a very complicated one. I would say that if I had to 
choose one of your attempts to characterize what I am doing, I would take the 
second one. My system is admittedly a framework for changing the law if the 
law doesn't coincide with it. 

I have two problems with Terry Nardin's critique, although it was very useful. 
I have to say in passing, that the defense of the State system in his 1983 book is 
probably the most lucid that I've come across; it's an excellent work. So, I'm 
very flattered that he took the time to read my paper and criticize it from the 
standpoint of a defense of the State system. One problem is that international law 
may have some objectionable features. That is possible from the standpoint of 
what's right and wrong, if you believe there's such a thing as right and wrong. I 
happen to believe, many people will disagree with me, that one problem with 
the international law is its excessive deference to dictators. The fact that tyrants 
of all sorts are protected and granted the status of legitimate governments is to 
me, a moral problem with international law. In that sense, international law is 
deeply flawed. You cannot just take the view that because a tyrannical regime is 
there it has to be okay. Would you have said of the ancient regime in France in 



138 Legal & Moral Constraints on Low-Intensity Conflict 

1789, "Oh, we've had it for many centuries, let's keep it?" That's what Burke 
actually argued. It is an ultraconservative view that we should keep whatever we 
have, and I reject it. 

The other conceptual problem with taking international law as a touchstone, 
is that unfortunately for Professor Nardin's view, there is no such thing as an 
international law that is chiseled on tablets, waiting to be obeyed. As Professor 
Reisman and the New Haven school have demonstrated for many years, 
international law, the practice of States, the language of treaties, need to be 
interpreted. We need to make sense of it. We just cannot say, "Oh, that's what 
international law says." We have to make sense of it. On the very issue before 
us, humanitarian intervention to protect human rights, the practice of States is 
open to sharply opposed interpretations, each consistent with the facts. You can 
interpret the practice of States of intervening to remedy human rights violations 
as carving out a new rule of humanitarian intervention or you can interpret it as 
criminal aggression. So, I think in order to interpret it you need to rely on 
principles. Maybe not my theory, someone else's theory, but some theory. 

The final remark that I want to make is in response to the last comment you 
made suggesting that we would want to impose our morality if it clashes with 
what anyone else thinks. Many people disagree with this position, and certainly 
I think to some extent Professor Nardin disagrees, but I am simply not a relativist. 
I do not believe that whatever some community believes is right, must be 
accepted as right. I think there is objective moral truth. In the international arena, 
I would make the modest claim that the moral truth is the International Bill of 
Human Rights. I'll agree with Professor Reisman's remark that my views of 
philosophy and law intersect there, and I would be happy to accept that as a kind 
of a working starting point; the International Bill of Human Rights as the 
touchstone of what is right objectively and universally. 

PROF. REISMAN: Jack. 

MR. MCNEILL: Yes, Jack McNeill, Defense Department. 

I was very pleased in the last few minutes to hear a number of remarks that I think 
do suggest that there is a great difference between the approach of the philosopher 
and the approach of those still laboring to understand what international law has to 
say in this area. Particularly in the arena of low-intensity conflict where the rules, if 
they be rules, are very difficult to discern. There is a great difference I think, not 
only in interpretation, but with regard to whether the rules really exist at all. I'm 
thinking, in particular, of the opinion of the International Court of Justice in the 
Nicaragua case, where the Court in my view, made up new rules that now purport 
to limit the right of individual States to engage in self-defense and would also limit 
their right to come to the aid of each other, in a case where collective self-defense 
would otherwise be appropriate under Article 51. And so, I think Professor Farer's 



Panel Discussion 139 

earlier question was helpful in that it suggested that we may have to face in this 
particular realm of inquiry a situation where the rules either do not exist, or have 
very little validity, perhaps because they emerge from this rather wretched case, 
which the United States did not handle very well procedurally. Even if that is 
so, the court, I think, acted in an ultra vires manner, and so there is a cloud, at 
least on the value and the content of its judgment. Of course the case has never 
closed because the results have been withdrawn, but a judgment is on the books, 
a very unhelpful judgment. So what do we do as practitioners and operators in 
this field where we may have to face the judgment of the Court in a situation 
where we feel that we have rights under the preexisting law and we have the 
moral authority to engage in action that we feel must be taken, action which 
might conform to all of the requirements set out this morning? What is the 
approach that you would recommend for the policymakers to take into account 
these conflicting imperatives? 

PROF. REISMAN: That's a simple matter. Do the right thing. 

PROF. TESON: Well, very briefly, I think that the Nicaragua case was an 
unmitigated disaster in every respect, not just in the self-defense field, but in the 
area of human rights. 

I think the answer to your question, Professor McNeill, is simply that the 
Nicaragua case may not represent the law. I think we should take the metaphor of 
the cave to suggest that Anglo-Saxon notions of precedent may lead us to excessive 
deference to the Court's judgment. What the interpreter should do is to try to 
impartially interpret the law in accordance with the background theory that can best 
explain international relations. I think the Court was out of touch with the process. 

PROF. REISMAN: Judge Sofaer. 

JUDGE SOFAER: Abe Sofaer. 

I am troubled by what Jack says. I find that there are rules, and I had gotten 
the impression that the trouble with the Nicaragua case was that the Court made 
up new ones and applied them there, and we battled, and are continuing to battle 
as I understand it, over what the right rules should be. The interesting thing 
about Professor Teson's paper is that it seems to imply that there are not any 
rules, so we are not losing anything by opting for a sort of moral guide to when 
we can intervene in States and when we can't. I'm not sure of that. I think we, 
in the Government, always assumed that when you went into another State, 
irrespective of how moral the government was or the leader was, you were 
violating the territorial integrity of that State. If it was a State recognized by the 
U.N., you were violating that State's sovereign rights by going in there without 
its permission, and there was automatically an obligation upon us to explain what 



140 Legal & Moral Constraints on Low-Intensity Conflict 

it was that we felt justified that intervention. So I find the notion that a sovereign 
State is democratically elected and has a vertical and horizontal legitimacy to be 
terrifying as a justification to advance, as a practical matter, for any kind of 
intervention, whether it's an abduction or a rescue or any of those things. I don't 
see how any of us could do that with a straight face, and I could not, as a matter 
of conscience. I think it would leave States and political leaders and military 
leaders without any parameters that were sufficiendy reliable to work with. When 
we look at the Nicaragua decision and say, well, it was wrong because A, B, and 
C, and we advance something that was right, we are still within the traditional 
confines of legal argument. I find the paper philosophically very attractive and 
probably a more accurate guide to what's happening in the world, and what God 
willing, should happen in the world over the next couple of decades. Maybe it 
is what we should be pressing for politically, and maybe it should even guide 
what our political leaders ought to opt for when they decide to use force within 
traditional legal constraints. But, I don't see it as a legal guide that's final. 

PROF. REISMAN: Professor Teson, would you like to comment? 

PROF. TESON: Just very briefly. 

Well, I'm perfecdy pleased with just accepting that you find it attractive 
philosophically. That's what I tried to do, to write a paper on the philosophy of 
low-intensity operations compared to State sovereignty and make it attractive. 
How it's attractive and terrifying at the same time is an interesting proposition. 

PROF. REISMAN: Terrifyingly attractive. 

PROF. TESON: That's right. 

PROF. REISMAN: I would like to interject two comments here starting with 
Jack McNeill's observation. The international lawmaking process is very com- 
plex. It's different than the domestic process where we essentially can consult 
formal sources; statutes and the judgments that interpret them. A general college 
of jurists will usually come up with pretty much the same judgment of what the 
communication of the community's policy is. In the international system you 
don't have a legislature. You have a lawmaking process that's extremely complex. 
It involves many different formal organizations like international courts, the 
Security Council, governments interacting and governments engaging in unilat- 
eral action. The determination of what law is at any moment, as a result, requires 
much more scrutiny, and the responsibility of the international jurist in deciding 
on the law, is a much graver one than it is for his domestic counterparts. It's one 
that's usually presented with the qualification that it is valid as of this moment, 
or in the foreseeable future since we deal with a very fluid situation. In the nature 



Panel Discussion 1 41 

of the international system, strong actors have the capacity to make changes in 
law by their behavior. In the post-war period, the United States made a fair 
amount of international law. Some by itself, some in coordinated behavior with 
the Soviet Union, and even now, the United States has extraordinary power. A 
Canadian legal advisor once remarked that in international politics, one hundred 
minus two sometimes equals zero. There is a blocking capacity and a lawmaking 
capacity that is associated with this very great power. That means, I think, that 
there are very special moral responsibilities and here we intersect with Fernando 's 
point. The responsibilities are borne by U.S. officials who have to determine 
what is appropriate behavior in some circumstances. It's not simply what is right. 
We're not simply applying law, we're also in the process of making law. While 
this should proceed with a full sensitivity to the problems of unilateral lawmaking 
and concern for the genuine interests of others — the international court has talked 
about this — I still think that it imposes great responsibility. 

In regard to the Nicaragua case, I think it quite clear that the Court is simply 
one of many voices as to what international law is on this matter. It's not the 
final voice. Even if the Court's jurisdiction were properly founded, which is the 
contingency in which it may issue authoritative statements, it's not the final 
statement. So the conclusion as to what law is at a particular moment will involve 
an ongoing examination of many communications from the context. 

One other point. I'm not a moral philosopher, but I would like to respond 
to Judge Sofaer's observation. I don't think that Teson's being unreasonable. His 
followup comment was that he believes that wholly aside from what the law is, 
he has an independent moral responsibility to determine what's right and to 
recommend to others to do it, and perhaps to do it himself. And so this is, as it 
were, a criterion for appraisal or evaluation of contemporary law and a guideline 
for future behavior. 

COL SMITH: Ron Smith. 

We have dwelt at length on traditional nation-State relationships. I think we 
need to consider the recent development of extra-national criminal organizations 
that engage in drug trafficking and terrorism. There's one view, of course, that 
holds the sovereignty of the nation-State to be inviolable. But perhaps we should 
be looking at sovereignty with different criteria to address this new problem, 
particularly where the nation-State involved is either purposely harboring the 
activity, or is unable to do anything about it. 

PROF. NARDIN: I think you can predict my answer to this question. We 
obviously have a grave global public policy problem and we're here to talk about 
solutions to it. I don't understand why one moves quickly from the identification 
of a problem to trying to solve it though the use of force, not to mention covert 
action. These are measures that might be in violation of not only international 



142 Legal & Moral Constraints on Low-Intensity Conflict 

law, but the laws of the United States. I couldn't agree more with the kind of 
legislative view expressed by other people on this panel today, that we have to 
be concerned with developing appropriate norms, appropriate modalities for 
dealing with these problems. I think that the reason we're here is because it's 
actually the case that there are, from time to time, such challenges that must be 
answered. The burden, overwhelmingly, is on those who want to act, covertly 
or forcefully, to deal with those threats. Therefore, I think this whole issue really 
is about extremity. In other words, what do you do when the threat is so grave 
that you feel that it's justified to set aside the traditional constraints of law? My 
position on this is that it's all too easy to succumb to extreme thinking. We've 
seen again and again that respect for the law is a virtue that helps us resist that 
kind of temptation. It's not a question of upholding international law or even 
U.S. law in any simplistic way. Obviously, there are bad treaties, bad decisions. 
What I'm concerned with is a general attitude toward legality and attitudes which 
would help to strengthen the rule of law in the international system. Even when 
dealing with real problems, which may well call for a low-intensity response, we 
should not act in ways that are going to subvert rather than strengthen the rule 
of law in international society, which is presumably what we're ultimately 
concerned with. 

PROF. REISMAN: Tom Farer. 

PROF. FARER: I think it's necessary to say that there is a very great discrep- 
ancy between the view of a rather small number of international legal scholars, 
most of whom are Americans, and the great majority of European and Latin 
American legal scholars. Michael and I were at a conference with the cream of 
the German international legal community only two weeks ago, and the 
discrepancy was quite clear to them. Most international legal scholars believe 
there are very significant restraints on the use of force, and that those restraints 
are identifiable. Despite the unique conjuncture that every case represents, they 
maintain that it is easy in most cases to identify what the appropriate behavior is 
as far as law is concerned, and that frequently, the United States has acted without 
reference to those restraints. 

As we talk, I think we should recognize that this discrepancy exists, and I 
think, often in gatherings like this, one cites one interpretation of the Charter 
and another and it makes it sound as if there is a balance of views, but the 
truth is there isn't. Now, that doesn't mean that we should necessarily comply 
with the majority view* We should at least recognize that this view of the 
extreme flexibility of the Charter norms, or the customary norms, is not a 
widely shared view. That ties into the comments that were made about the 
Nicaragua decision, and the position of the Court in expounding the law. I 
won't undertake this time to defend the Nicaragua decision, but I think it's 



Panel Discussion 143 

far more defensible and coherent than some of the comments made to this point 
would suggest. Be that as it may, there is the fact that the Court is composed of 
jurists from a variety of countries, many of them western or allies of the West. 
Most of these gendemen are distinguished and would support the point made 
earlier, I think, that those American lawyers who think that the norms are unclear 
represent a distinct minority. In that sense, the Court's view in the case of Libya 
highlighted this discrepancy with which we must struggle. 

PROF. COLL: In response to Professor Farer's point, I think that we need to 
address also the impact of responsibilities that a great power has, and you, 
Professor Reisman, alluded to that earlier. 

It may be that the United States, because of its global position, faces certain 
policy choices and obligations which put it into a situation in which the rules, 
as it perceives them, are not quite clear. It may also be that the rules in a sense 
do not give the United States enough room for the kind of flexibility that is 
required, not only strategically but even from the larger viewpoint of political 
and even moral wisdom. I think that's a point of which we must not lose sight. 
In the same way that certain small States can behave with a greater disregard for 
international law than even we do, there are other States without the same degree 
of international obligation that we have, that will press for what I would call 
highly restricted interpretations of international law and questions relating to the 
use of force. 

RADM LEMOYNE: For Professor Teson. 

You mentioned Saddam Hussein a couple of times in the context of assassina- 
tion. From an operational standpoint, from the time that the Iraqis moved south 
to the time that the cease-fire was declared, was there any difficulty in systemati- 
cally targeting and hunting down Saddam Hussein as the operational commander 
of Iraqi armed forces? If we could have caught him quickly, I think that may 
have ended the war earlier. 

PROF. TESON: That is a very good question. My answer is there wouldn't 
have been any difficulty in doing that, which is why I find the failure of the 
coalition forces to do it inexplicable. I don't know what the facts are. I'm told 
that the Saudis advised President Bush not to go after Saddam Hussein, against 
the judgment of the field commanders. I don't know what the facts were, but 
it's very interesting because it brings out part of what I say about sovereignty. If 
you're in open war, sovereignty becomes subject to different considerations. So, 
as you very well put it, I think it would have been justified to go after him as the 
commander of those forces against which we were fighting. It was easier then 
than now, when sovereignty considerations, at least in the traditional sense, have 
reemerged after the cease-fire. 



144 Legal & Moral Constraints on Low-Intensity Conflict 

RADM LEMOYNE: And I'd like to follow up by returning to the difficult 
case of President Fujimori in Peru. 

You expressed some reservations about what he's doing, but viewed from 
another perspective, his country is in mortal danger from drug trafficking and 
the Sendero Luminoso. 

PROF. TESON: Well, let me address that very briefly because it touches 
closely on my own experience in Argentina. I certainly sympathize with the 
situation he's in. The fact that the insurgency is being financed by the drug money 
is admitting an extenuating circumstance. Having said that, I think we in the 
democratic world should warn, to use the cliche, against trying to save democracy 
by destroying it. The way to eliminate the cannibals is not to eat them. In 
Argentina, I witnessed a government for eight years, which in the name of 
civilization and of democracy, kidnapped, imprisoned, tortured and killed 
people. So I just don't think that some of the things that he's done are justified, 
even under the right of an emergency, because they destroy democracy. Having 
said that, I still believe it's a hard case. 

PROF. REISMAN: Ladies and gentlemen, we have reached the end of this 
morning's session. I thank the speakers in this second panel, and I thank the 
members of the audience who participated because it's been very useful. We've 
exposed this as an extraordinarily complex and difficult issue, though a number 
of speakers put forward guidelines or theories for making choices. None of them 
suggested for a moment that any of these choices are easy. This is a difficult 
subject and for that reason, I think we will continue it this afternoon. 
Thank you. 



PART THREE 



MORAL CONSTRAINTS ON LOW-INTENSITY CONFLICT: 
MORALITY AND THE JUST WAR TRADITION 



Chapter VI 

Just War Tradition 
and Low-Intensity Conflict 



by 
James Turner Johnson* 



Introduction 

Some readers of this paper may know a great deal about the just war tradition, 
while others may be less familiar with it. Part I provides an orientation for 
the latter and, for both sorts of readers, locates my own normative position within 
just war thought. Working from this base, Part II applies just war tradition to 
low-intensity conflict. 

The just war idea takes many forms in contemporary moral debate, and one 
must be careful to recognize their variety. After illustrating this diversity with a 
brief overview of some of the principal contributors to the recent tradition, the 
paper will go on to discuss their work in greater detail. 

For the late Protestant theologian Paul Ramsey, a preeminent figure in the 
recent debate, just war had to do principally with conduct in war. He understood 
it to be a moral concept rooted firmly in the Christian ideal of love for one's 
neighbor and focused on the principle of discrimination. In contrast, Fr. J. Bryan 
Hehir and the U.S. Roman Catholic bishops view just war as a doctrine of the 
Catholic faith, rooted in natural law but passed down and developed through 
theological debate. William V. O'Brien also acknowledges Catholic theological 
tradition and natural law as sources of the idea of just war, but he accords 
authoritative status to its formulation by St. Thomas Aquinas and subsequent 
development in the modern period through international law as well as moral 
doctrine. For James F. Childress, on the other hand, just war thought is not 
particularly Christian in nature; it is a set of prima facie ethical duties derived 
from philosophizing about when the use of violence can be morally justified. A 
very different philosophical conception of just war is offered by Michael 
Walzer, for whom it is a body of moral wisdom accumulated from reflection 
on the struggle against evil throughout history. We might add others to this 
list, including the "just-war pacifists," persons who typically choose one or 
another just war criterion (e.g., proportionality or last resort), argue that it 



148 Legal & Moral Constraints on Low-Intensity Conflict 

cannot be met under contemporary conditions, and thus conclude that just wars 
are an impossibility. 

Leaving these latter misusers of the idea of just war aside, my own position is 
that we should speak of just war tradition, not simply one doctrine or another, 
understanding the tradition to include a number of related streams of thought 
that are reflected in the diversity of perspectives found in current just war debate. 
Just war is a historical tradition formed by experience and reflection, including 
much that is neither specifically theological (or even religious), nor philosophical. 
It has been strongly influenced by international law, the traditions of chivalry 
and soldierly practices derived from the experience of many battles. 

I like to describe just war tradition as a whole by the metaphor of a river 
flowing through its delta toward the sea. The common stream forms, separates, 
and forms again, with the main flow now being carried by this channel, now by 
that one. When all its parts are understood together, just war tradition represents 
a cultural consensus on when war is justified and what limits should be observed 
in fighting justly. This consensus has its deepest roots in classical and biblical 
antiquity, came together coherendy in the high Middle Ages, and has since 
developed great richness by responding to changing historical conditions. The 
moral wisdom contained in the tradition has coalesced in certain formal criteria, 
each of which is informed by a deep and thematically diverse background of 
historical experience and moral reflection. When seeking to apply this tradition 
to contemporary issues, I consider the historical weight of meaning present in 
each of the relevant criteria. Ideally, this becomes a dialogue in which the wisdom 
of others who faced these problems long ago illuminates the perplexities that 
surround our deliberations about the use of force in the present. 

In the first part of this paper I develop in more detail the view of just war 
tradition as a historically shaped body of moral wisdom on the justification and 
limitation of war. In the second part I examine the implications of this tradition 
for the moral conduct of low-intensity warfare. I conclude the paper by arguing 
that the moral criteria of just war should be understood as "rules of the game" 
for the involvement of American forces in low-intensity conflict. 

I. What Is Just War Tradition? 

A. Main Features and Provisions of Just War Tradition 

All major cultures, over the course of their development, have produced 
normative traditions regulating the use of force. This function is performed in 
western culture by the just war tradition. It is a moral teaching in the broadest 
sense, expressing fundamental values relating to the practice of statecraft and the 
use of force by statesmen. It is important to note, though, that systematic moral 
reflection has been only one of the major contributors to this broad tradition, 



Johnson 149 

both historically and in the present. When the elements of just war began to 
cohere in the Middle Ages, they formed a cultural consensus on the justification 
and limitation of conflict. In addition to theology and philosophy, medieval 
thinking on just war incorporated chivalric custom and military practice, canon 
and civil law, and precedent governing relations among princes. 

These contributions can still be discerned in the broader just war tradition, 
where each has its contemporary form. In the military sphere, manuals of warfare 
prescribe acceptable conduct in battle and stipulate rules of engagement for 
specific conflicts. In the legal arena, the corpus of international law guides the 
relations of States. In the theological domain, theorists like Paul Ramsey and the 
authors of the 1983 pastoral letter of the American Catholic bishops pronounce 
on war conduct. And in the academy, philosophers like Michael Walzer and 
Elizabeth Anscombe reflect on the relevance of the tradition to current chal- 
lenges. In various historical periods, moreover, the tradition as a whole has been 
carried forward and developed more in one or another of these areas than in the 
rest. In the eighteenth century, for example, the political and military practice 
of limited war had a major impact on the entire just war tradition. From the end 
of World War I until recently, by contrast, the dominant carrier of just war ideas 
was international law. And from the 1960s to the present, systematic religious and 
philosophical reflection have regained the primacy of their original influence on 
the development of the tradition. 

In contemporary usage, the term "just war" is sometimes reserved for the 
religious element in this broader moral tradition. At other times the idea of just 
war is associated only with the medieval period in which the ideas and practices 
of the tradition first coalesced. The former usage mistakenly restricts the breadth 
and diversity of the tradition, however, and the latter fails to take account of its 
historical continuity and growth. In summary, then, I view just war tradition as 
a great river of morally informed theory and practical reflection in which many 
cultural sources mingle. Legal, military, political and philosophical tributaries all 
enrich the mainstream of Christian just war thought. I also take a comprehensive 
view of the tradition, keeping in mind its classical origins and complex evolution 
when applying it to contemporary problems. 

Understood in this broad sense, just war tradition has evolved around two 
distinct questions: when is it justifiable to employ military force and what limits 
or restrictions should govern the justified use of force. The former question has 
generated a set of formal criteria for judgment known, in classical terms, as the 
jus ad bellum (literally, that which is right or just in resort to war; contemporary 
analyst William V. O'Brien calls this part of the tradition the "war-decision law'*). 
The latter question, in turn, has generated other formal considerations grouped 
under the heading of jus in hello (literally, what is right or just within war; O'Brien 
calls this "war-conduct law"). A few comments are needed on the various 



150 Legal & Moral Constraints on Low-Intensity Conflict 

criteria that make up the jus ad helium and jus in hello >, on their interrelationships 
and on the priorities among them. 

The first thing to say is that within the just war tradition the jus ad helium has 
a certain historical and logical precedence over theju* in hello. That is, the question 
of the right manner of using force does not properly arise until the question 
whether the use of force is justified has been settled. Some present-day theorists 
appear to me to have got this logic inverted, arguing that contemporary means 
of war inevitably violate the jus in hello criteria of proportion and discrimination, 
and therefore that no jus ad helium can exist. This position is sometimes called 
just-war pacifism; more accurately, it is pacifism pure and simple, because it 
employs a different logic from that of just war tradition. 

The second thing to say is that historically and thematically, the first three jus 
ad helium categories — just cause, competent authority, and right intention — 
have a claim to being more fundamental than the others. These had priority in 
all the medieval sources, including Augustine, the canonist Gratian and his 
successors, and Thomas Aquinas, who listed only these three criteria as necessary 
conditions for a just war. For medieval writers, other/n$ ad helium criteria, while 
important, had less normative weight. They were either understood as further 
elaborations of the ideas of just cause and right intention or were seen to be 
prudential considerations that might count against the justice of a war but could 
not alone justify the use of armed force. 

Similar views were held by the magisterial just war theorists at the dawn of 
the modern era: the Spanish neo-scholastic Vitoria and his less well known 
colleagues, Molina and Soto; the later moral theologian Suares; and Grotius, to 
whose thought is generally traced the theoretical origin of secular international 
law. 

Some present-day just war reasoning, as already noted, seems to invert the 
logic of the structure established by these great figures. In the debate over the 
GulfWar, for example, the spokesman for the United States Catholic Conference 
argued against American use of force against Iraq on the grounds that it would 
be likely to violate the criteria of proportionality and last resort. Other critics of 
the war argued that it would not serve the end of peace. These are indeed 
important concerns to raise, but the weight of just war tradition as a whole calls 
for looking first at the question of just cause. Its requirements were satisfied, in 
my view, by Iraq's unwarranted invasion and occupation of Kuwait, violating its 
sovereignty and international law. The question next in line of consideration, 
that of competent authority, was more than met by United Nations Resolution 
636 and its predecessors, as well as by resolution of the United States Congress. 
And the desire to restore Kuwaiti sovereignty and prevent Iraq from further 
aggression was clearly in the spirit of right intention. Only after these consider- 
ations have been satisfied do the remaining jm* ad helium conditions come into 



Johnson 151 

play. The result is a logic quite different from that obtained by beginning with 
those criteria and making the entire jus ad bellum decision hinge on them. 

Equally important, theorists writing in an age of holy war, most notably Vitoria 
and Grotius, argued for a conception of just war that was universal in scope, not 
simply an artifact of western culture. They advocated principles based on right 
reason alone, not religion or other ideological belief. "Difference of religion," 
Vitoria wrote, "is not a just cause for war." Moreover, he maintained, Indians 
of the New World and Spaniards alike could understand the requirements of just 
war, which derive from nature, and both were bound by them. 

Following the implications of this reasoning in the present day means rejecting 
not only justifications for war rooted in religious claims but also, more broadly, 
those rooted in other sorts of ideologies that make similar claims to absolute truth. 
With the expiration of Communism as an engine of historical change, the 
urgency of the latter concern has begun to wane. At the same time, though, the 
specter of holy war, which had confidently been thought to have disappeared at 
the start of the modern period, has reemerged. The threat of Islamic militance 
in the Mideast has been joined by growing Buddhist and Hindu extremism in 
the subcontinent. Hatred between Protestants and Catholics also continues to 
fuel strife in Northern Ireland. Faced with such challenges, just war theorists must 
supply two different sorts of responses. They must first make a special effort to 
expose the use of spurious religious imperatives to justify aggressive designs. A 
natural outgrowth of their effort should be the formulation of moral criteria by 
which this pernicious misuse of religious authority can be condemned and 
fought — an effort which may at times require the use of military force. On the 
other hand, just war tradition must not be used so as to undermine its own claims 
to provide a standard for the use of force that is fair, recognizable through a 
common human reason, and universally binding. Present-day interpreters of just 
war tradition should keep both these needs in mind. 

B. Just War Tradition and American Legal and Moral Thought on War 

There are two ways to think about the presence of just war tradition in 
American culture, one formal and the other less so. That such a presence exists 
is of considerable importance for this discussion. It means that the use of just war 
criteria does not impose alien norms on the American moral consciousness. Part 
of the task of interpretation, then, is to bring such norms and their implications 
to light. 

Thinking informally about the presence of these just war norms, James F. 
Childress has argued, as noted above, that they establish "prima facie duties" — 
obligations to behave in accordance with their requirements unless other norms 
and other obligations, in a specific case, override them. A less technical way of 
saying this is that the various categories that make up the jus ad bellum and jus in 



152 Legal & Moral Constraints on Low-Intensity Conflict 

bello of just war tradition are simply objectifications of the way people in our 
culture normally think when they make moral judgments about war and other 
uses of force. That is, without prompting from theologians and philosophers, we 
tend to think in terms requiring just cause, appropriate authorization, right 
intention, and so on. 

Formal signs of the presence of just war tradition are not only useful 
reference-points in themselves but support the claim that there is a pervasive 
though informal presence of the just war norms as well. I will identify three major 
areas in which just war tradition is formally present: international law, military 
codes of conduct, and the theological and philosophical debate. 

1. Just War Tradition and International Law. International law on war 
has historically been one of the vehicles for development of just war thought 
within the broader just war tradition. In this relationship, the categories are those 
of just war tradition in its classic form, while the content of the categories is 
drawn from specific provisions of the contemporary law of war. That these 
provisions are not identical with the content o£ jus ad helium and jus in bello 
summarized earlier simply underscores the fact that international law is one 
among several major tributaries of the broader tradition, each of which has its 
own concerns and develops the tradition within its own limits. 

What emerges from this comparison is that international law truncates the 
broader tradition in certain respects. The links are plain, nevertheless. This 
relationship means, among other things, that to draw out fully the implications 
of international law in a particular case, interpreters should bear in mind the 
moral wisdom of the broader tradition. The somewhat embattled notion of 
defense found in contemporary international law thus can be better understood 
when it is recognized that "defense" in this context includes not only just cause, 
but also the classic just war categories of recovering something wrongly taken 
and punishment of wrongdoing. 

2. Just War Tradition and American Military Manuals on War. There 
is a long tradition, dating back to the early modern era, of manuals of military 
conduct that render concretely the more abstract content of normative western 
thought on war. The earliest such manuals in the United States were written 
chiefly to regulate civil-military relations. A corner was turned, however, with 
the Civil- War era General Order No. 100 of 1863, prepared at the behest of the 
General-in-Chief of the Union Army by a commission that included a professor 
of international law, Francis Lieber. "Lieber's Code,'* as the manual is sometimes 
known, differed from earlier regulations in two important ways. It focused on 
the conduct of war, not the barracks life of the soldier. It also defined the limits 
of allowable practices in war by reference to the extant body of customary 
procedure and systematic juristic theory. These customs and theories defined 
international law on war in a time when it had not yet been formulated in specific 
treaties and international agreements. General Order No. 100 set the pattern for 



Johnson 153 

a new style of military manual on war, both in the United States and in other 
western countries. Present-day American military manuals like the Army's FM 
100-5 and the Air Force's AFP 110-31 are the latest examples of this approach 
to summarizing and regularizing the implications of moral norms that ultimately 
trace to just war tradition. 

3. The Theological and Philosophical Debate Over Justified War. 
Beginning with the groundbreaking work of Paul Ramsey, War and the Christian 
Conscience, published in 1961, sophisticated efforts to explore and spell out the 
specifically Christian elements in the just war tradition have figured significantly 
in the American religious debate over ethics and war. Seven years later, Ramsey 
published The Just War: Force and Political Responsibility, a compilation of 
twenty-four essays focusing both on nuclear deterrence and counter-insurgency 
in Vietnam. By presenting a reasoned defense for the use of force in Christian 
practice, Ramsey's essays shifted the perspective of the just war debate. Estab- 
lishing at the outset that force is a necessary part of politics, he countered Utopian 
arguments calculated to exclude consideration of the use of force from political 
discourse. Ramsey then employed an extensive analysis of the concept of love 
for one's neighbor to meet the arguments of Christian pacifists. He maintained 
that the love of a Christian for his neighbor justifies his participation in war at 
the same time as it constrains his use of force. Love requires that the Christian 
defend his neighbor against unjust attack, employing means up to and including 
military force. But Christian love also requires that the innocent be protected 
against direct, intentional use of force against them. This latter consideration, 
which Ramsey termed the principle of discrimination, is otherwise known as 
the principle of noncombatant immunity. By focusing on it as a requirement of 
Christian love, Ramsey implicitly made this jus in hello principle the centerpiece 
of his own understanding of the just war idea, minimizing the^ws ad helium. This 
perspective on what is distinctively Christian in just war teaching continues to 
have a great influence in religious debate over ethics and war. 

A bibliography of the many works written over the last thirty years that 
apply just war tradition to contemporary military issues from a specifically 
Christian perspective would include authors such as Childress, Fr. Hehir, 
O'Brien, Potter, Weber, and the American Catholic bishops, whose pastoral 
letter was the most influential of several official church statements in this 
genre. Numerous other writers have also used just war reasoning for pacifistic 
purposes, including Hauerwas, Geyer, Yoder, and the authors of church 
statements such as the pastoral letter on war of the bishops of the United 
Methodist Church. In short, just war tradition, albeit in a form tailored to 
specifically Christian concerns, is a central part of recent religious debate over 
ethics and war. 

In the corresponding philosophical debate, the most prominent figure is 
Walzer, whose Just and Unjust Wars, published in 1977, holds a place of honor 



154 Legal & Moral Constraints on Low-Intensity Conflict 

comparable to Ramsey's 1961 work. Walzer's purpose, as expressed in the 
preface, was to rehabilitate just war reasoning for the contemporary debate. Other 
philosophers who have explicitly employed just war reasoning in their writings 
about ethics and war range from Elizabeth Anscombe to Robert W. Phillips. 
The just war idea is an influential presence in philosophical as well as in 
theological debate — not, again, as something imposed from outside but as a 
way of thinking about ethics and war that is integral to theological and 
philosophical argumentation. 

In summary, just war tradition has become deeply rooted in the way 
Americans think about what justifies war and what restraints should govern it. 
Public thinking on the use of force has been influenced so strongly by the 
tradition that policy decisions couched in terms of just war criteria are readily 
taken up in the to and fro of the ongoing debate. 

C. Levels of Application of Just War Tradition in 
the National Use of Military Force 

The just war tradition may be applied to several distinct layers of responsibility, 
descending from the highest level of political leadership through policy makers 
to military commanders of all ranks and their enlisted personnel, while not 
excluding the reflective citizen who takes an active interest in the national policy 
debate. In other words, just war tradition offers moral guidance, lays down 
obligations, and establishes a framework for critical moral reflection at all these 
levels. Let me comment briefly on each. 

1. The Head of State. The ideal of the "good ruler" is deeply rooted in 
western culture. The power of such a political leader is not merely statutory, but 
is given moral authority by the virtue of his actions. As Ramsey and Walzer have 
argued, by providing the statesman with a protocol of restraints and justifications 
to guide his thinking about the use of force, the just war tradition establishes a 
framework for the realization of this ideal. Such a perspective is a direct challenge 
to that form of political realism that considers the best politics to be totally 
value-free. Even if such a value-free state of affairs were achievable in practice, 
it could not serve the public good in a society characterized by deeply rooted 
moral values. For the head of state to take into account the moral wisdom 
contained in just war tradition is, then, nothing less than right politics. 

2. The Policy Debate. Essentially the same considerations apply a notch 
lower, at the level of the policy intellectuals both inside and outside of govern- 
ment. Again, the issue is whether a more adequate understanding of politics is 
provided by an effort to achieve a value-free "realism" or whether it is to be 
found in an effort to incorporate into policy formulation and associated decisions 
moral values deeply held in the political society. In Part II of this paper I will 
follow this consideration further, examining the translation of just war ideas into 



Johnson 155 

contemporary policy language. At the present, however, my point is simply that 
just war reflection belongs at the policy level, even as it does at the level of 
decisions of the head of state. 

3. Military Command. The presence of just war criteria in the interna- 
tional law of war and in contemporary military manuals and regulations demon- 
strates plainly the relation between these basic cultural ideas about the proper use 
of military force and the responsibility of persons in military command. Obvi- 
ously, there are differences in degrees of responsibility according to rank and 
assignment in military service. Commanders at higher levels bear greater burdens 
of responsibility than subordinates and also have greater ability to influence how 
military force is employed. They decide on military objectives, prioritize targets, 
choose weapons and decide what people will be put at risk. The great respon- 
sibilities and discretionary powers of the military commander underscore the 
fundamentally moral nature of command and draw him fully into the circle of 
reflection on the relation of moral values to combat. 

4. The Individual in Military Service. United States military regulations 
reflect domestic and international law in placing final responsibility upon an 
individual for his actions. Ignorance of the law does not excuse violation of it; 
nor does obedience to unlawful orders. Nor does the "law" in question have to 
be framed as positive law. The Nuremberg precedent makes clear that the 
fundamental moral notions that have shaped positive law remain binding even 
when they are not given explicit expression within it. If this were all that needed 
to be said, the result would be military anarchy, making war more dangerous 
and destructive for soldiers and civilians alike. The moral requirements of the 
just war tradition are accordingly condensed and given practical focus in its 
treatment of military discipline. To avoid worsening violence with chaos, orders 
and actions in accord with military discipline are given a presumption of lightness 
that imposes a duty to obey on the private soldier. Yet that duty is never absolute; 
the moral nature of the individual implicitly imposes a check on it. This means 
that moral responsibility extends up and down the chain of command. No soldier 
should be asked to fight in an unjust war or under unjust orders. But at the same 
time, the soldier owes a presumption of lightness to his commanders, the political 
leadership and the country as a whole. 

5. The Private Citizen. In a democratic society the private citizen is not 
at the bottom of a chain of command but, in an important sense, at the top, since 
the representatives he elects give character to the nation and influence its foreign 
policies. This side of the Kingdom of God on earth or some other Utopia, the 
use of force is an essential part of politics. War does not belong outside the sphere 
of the moral but, like other human activities, is fundamentally moral in nature. 
It is the citizen's obligation to ensure that the nation's military policies and its 
decisions regarding the use of force remain in concert with the moral values that 



1 56 Legal & Moral Constraints on Low-Intensity Conflict 

undergird it. By reflecting on the concerns found in just war tradition, private 
citizens can make a valuable contribution to the public debate. 

My argument has been, then, that just war tradition applies at all the levels of 
responsibility in the national use of military force. The remainder of this paper 
examines its application to some illustrative cases of contemporary low-intensity 
conflict. 

II. Applications of Just War Tradition to Low-Intensity Conflict 

A. Issues in the Decision To Use Military Force 

1. Translation of the Jus ad Bellum into Policy Language. How should 
that part of just war tradition bearing on the decision to employ force be stated 
in the language of policy for the arena of low-intensity conflict? The question is 
complicated by the diversity of phenomena that are included under the term 
"low-intensity conflict" and also by the fact that Congress issues no declaration 
of war in such cases and a formal state of war as recognized in international law 
may not exist. The national use of military force within the context of low-in- 
tensity conflict takes place in the gray area between a state of war and a state of 
peace. Within this gray area, Clausewitz's dictum that the use of military force 
is the continuation of politics by other means applies perhaps even more strongly 
than in the arena of war proper. Because the policy making process may serve 
to determine whether the national use of military force is authorized in the 
absence of the sort of public finding represented by a declaration of war, it is 
especially important that it be conducted in accordance with just war values. 

An example from recent history shows how the just v/zrjus ad bellum can be 
given voice in the language of policy. In the mid-1980s Secretary of State George 
Shultz and Secretary of Defense Caspar Weinberger became involved in a public 
debate over the question of committing United States military force. The specific 
problem at issue was that of international terrorism. In response to the difficulty 
of fashioning a firm definition of terrorism from which provisions for counter 
measures might proceed, Secretaries Shultz and Weinberger issued policy state- 
ments on the use of force that reflected the concerns of the jus ad bellum in the 
idiom of policy language. The two approaches differed not only in their policy 
implications regarding the commitment of US forces but also in their employ- 
ment of just war criteria. Despite their differences, the statements are important 
instances of the translation of the tradition into the language of contemporary 
policy . Both policies demonstrate that even when the formal just war criteria 
are not explicidy invoked, their concerns are still readily identifiable. 

It is instructive to note the differences between these two policy positions in 
tone, in their implications for the commitment of military force and even in the 
level of argument. Shultz's position makes greater use of moral abstractions and 



Johnson 157 

aims to provide an ideological justification for the use of military force against 
international terrorists. Secretary Weinberger's position is much more narrowly 
focused and pragmatically oriented. Shultz appeals to high national values such 
as freedom, international security and stability, resistance against aggression, 
human decency and peace. Weinberger concentrates on procedures our govern- 
ment has employed to foster these values: using force only in defense, ensuring 
the appropriateness of the means to the cause, securing public and congressional 
support for the use of force, and verifying that all means short of force have no 
likelihood of success. Both positions fit within the just war tradition despite their 
differences, but their divergent approaches remind us that the formulation of 
policy is best pursued as a debate. As an evocation of values fundamental in just 
war tradition and American society, Shultz's approach has great appeal; yet 
without the procedural restraints imposed by Weinberger's approach, the result 
might well be a national bellicosity that would submerge those values. Thus, in 
practical terms the "Weinberger doctrine," as it has come to be called, is a much 
better statement of policy for guidance in the commitment of US forces in 
low-intensity conflict situations. 

My final point is that when just war tradition is applied in specific ways to 
concrete contemporary concerns, one should expect to notice some differences 
from classical expressions of the content of the just war categories. This follows 
from the fact that both the contemporary and the classical reflect their own 
historical contexts. But because the classical meanings attached to the just war 
criteria reflect a much broader historical context and encompass a wide range of 
practical moral experience and reflection, they provide a basis for critical 
assessment of the contemporary expressions. From a classical just war perspective, 
for example, the Weinberger doctrine could profit from clarification in virtually 
every category. Should the use of "defense" be taken to include the two 
additional just causes of classical theory: punishment of wrongdoing and retaking 
something wrongly taken? Should not "right intention" also be correlated with 
the goals of producing peace and fighting according to the^M* in bello limits? On 
"right intention", Weinberger's position, calling for an assessment of whether 
non-forceful means are ever likely to work, is a far more adequate reflection of 
the classic just war tradition than, for example, the position taken by the American 
Catholic bishops and other religious leaders, who read the last resort condition 
as requiring that all possible non-forceful means be actually tried and found to 
fail before resort to force is justified. 

In sum, the Weinberger-Shultz debate of the mid-1980s provides an edifying 
example of the application of just war reasoning in contemporary policy 
language. These cases provide a model for evaluating the faithfulness of other 
policy statements and debates to the just war tradition. 

2. Choosing to Use Military Force Against a Low-Intensity Conflict 
Adversary: the Relation of Moral Authority and Sovereignty in Actions 



158 Legal & Moral Constraints on Low-Intensity Conflict 

Across National Borders. The idea of sovereignty is treated in classic just war 
language through the concept of "right authority." Its original purpose was to 
discourage the spread of lawlessness in medieval society by proscribing the use 
of force for private purposes. The need to control the many depredations 
practiced by the strong against the weak had become so acute by the tenth century 
that it gave rise to the "peace of God" movement, an effort by ecclesiastical 
authorities to arrest the growth of anarchic violence. The canonists who 
continued the work of the movement through the fourteenth century succeeded 
in defining a conception of "right authority" which allowed only those civil 
authorities with no formal superior to authorize the use of force. This was 
consonant with prevailing medieval political theory, in which right politics aimed 
at establishing three goods: order, justice, and peace. Order was conceived as first 
among these, for without order there would be chaos; without order, just 
relationships among the members of the political community could not be 
ensured; and without both order and justice there could be no true peace, for 
peace meant far more than an absence of violence. This final goal of a good 
politics envisioned a community in which justice and orderly relations would 
prevail among men. The use of force for private ends was therefore seen as an 
attack on the society as a whole. Only the need to preserve order, justice and 
peace could legitimize force, and only those who had been recognized by society 
as legitimate authorities could order its use. Thus the just war term "right 
authority," which goes back to the Romans, translates into the modern concept 
of sovereignty, though it is broader than the specific legal definition of 
sovereignty found in positive international law. 

Many changes have transpired since the medieval coalescence of the idea of 
right authority, but the fundamental idea still stands. Nor is this moral criterion 
for the just use of force tied to any particular concept of sovereignty. Good 
political communities may take a variety of forms, but they are alike in promoting 
order, justice and peace. 

The application of the authority to employ force is not limited to war proper. 
This is shown by its medieval beginnings as the authorization for police actions 
against all forms of lawlessness. We can see this also in the classical grounds for 
just cause: defense against an unjust attack in progress or preparation, retaking of 
something wrongly taken and the punishment of wrongdoing. These criteria for 
just cause do not presuppose that the perpetrator of evil is another sovereign 
entity. Rather, when (following a favorite proof-text of classical just war theorists, 
Romans 13:4) the sovereign is given the right to use force, it is to act on behalf 
of God to punish evildoers. The limits on the sovereign's action are those of 
practical politics and the extent of his abilities. If another sovereign allows safe 
haven to cross-border raiders, or is too weak to do anything about them, then 
just war tradition has historically given those who have been wronged the 
authority to retaliate. 



Johnson 159 

All this historical reasoning provides strong support for the view that just war 
tradition allows the use of force on legitimate sovereign authority against the 
sorts of adversaries encountered in the context of low-intensity conflict: ter- 
rorists, drug traffickers and despots. These are the contemporary analogues of 
those medieval predators cited above. Indeed, there is more than a mere 
allowance to be found in the historical record: there is unambiguous hostility 
toward such threats to good political communities. 

Nor, in principle, does the "right authority" to use force to combat such 
threats stop at a nation's borders, so that the wrongdoers in question can take 
refuge in an international "no man's land" or behind the legal wall of another 
nation's formal sovereignty. Force may be employed across borders in cases of 
serious threats that can be dealt with in no other way. 

Of course, many restraints hedge in the discretionary powers granted by this 
view of sovereignty and the use of force. The moral limits encompass all the 
criteria of just war tradition. Besides right authority and just cause, these include 
right intention, proportionate means and ends, reasonable prospect of success, 
last resort, just peace and the in hello principles of discrimination and propor- 
tionality. These criteria constrain the use of force in low-intensity conflict just 
as they do in cases of conventional conflicts between States. 

While unpacking these restraining criteria, one quickly encounters a variety 
of concerns peculiar to the contemporary world. In our democracy, government 
serves as a trust from and for the people. Without public support for military 
action, it has no "right authority" in the just war sense. The Weinberger doctrine 
is exactly on target in this regard. This is recognized almost instinctively in 
American politics, moreover, as the examples of such recent interventions as 
Grenada, Panama, and the Gulf War show in their particular ways. 

Even when just cause exists for a particular use of force that enjoys broad 
public support, we must address a number of other concerns that are raised by 
the classic just war categories enumerated above. Will military force solve the 
problem or exacerbate it? (Proportionality of means to ends). Are we in a position 
to use force effectively against the threat? (Reasonable hope of success). Might 
other means have a reasonable chance of success? (Last resort). Is the result likely 
to enhance security and justice for all concerned, or lessen them? (The end of 
peace). These questions must be answered anew for every threat that we confront 
and be justified in terms that reflect the nature of our political community. 

Certain recent developments have begun to influence the extent of national 
sovereignty in the sphere of international law. These are, broadly, of two sorts. 
On the one hand, the United Nations has been reinvigorated and with it various 
smaller multinational organizations ceded some measure of sovereignty by their 
members. And on the other hand, an understanding that human rights are not a 
matter of national preference has gained international acceptance. Both develop- 
ments may weigh against unilateral intervention, and both have in fact lent 



160 Legal & Moral Constraints on Low-Intensity Conflict 

support to critics of US military action in the three cases mentioned earlier: 
Grenada, Panama, and the Persian Gulf. But I think the broader thrust of these 
developments supports intervention when there is a broad international consen- 
sus favoring it. Such a consensus was overwhelming in the case of the Gulf War, 
providing justifications for the use of force against Iraq that went well beyond 
any interests particular to the United States. 

It may be then, that these developments only appear to modify sovereignty 
by focusing on human rights or alter its conception by reformulating it at the 
international rather than the national level. I am far from convinced that these 
developments in fact alter the concept of State sovereignty at all. What they do 
is more subtle and, in some ways, more far-reaching. They allow interventionary 
actions despite sovereignty in cases of egregious violations of generally accepted 
rights, and they do so by giving international sanction to such interventions, even 
when carried out by a single nation. 

Such a state of affairs depends on a large measure of international consensus 
and, perhaps more importantly, the lack of a significant challenge to that 
consensus. It could not exist so long as the Cold War lasted, and it may not exist 
at some future point that is now below the horizon. Nor is such a consensus in 
any way automatic; it must be achieved anew in each new situation. But when 
it does exist, it redefines the rules of national and international behavior. 

Specifically, I think the result is to open the door to clearly defined police-like 
activities involving the use of force to resist or remove what are broadly 
recognized threats to a particular people or to international order as such. Just 
war tradition as a whole has always been much more open to such interventionary 
action than positive international law has become in the twentieth century. The 
latter defines legitimate resort to force as always responsive: it is second use, 
responding to a prior, aggressive first use. While aimed at dampening resort to 
force in general, this conception of right use of force has the effect of identifying 
any employment of military force across national borders as aggressive by 
definition. The burden of proof is always to show that it is not. I suggest that 
under certain conditions now — conditions of egregious and unpunished 
violations of rights or threats to the security of others — the burden of proof has 
shifted so as to distinguish between aggression and temporary, interventionary 
use of military force to set right such violations and threats. 

3. Violations and Threats Deserving a U.S. National Response. The 
term "low-intensity conflict," is relatively new and covers a significant variety 
of types of conflict. According to the 1985 definition of the Joint Chiefs of Staff, 
low-intensity conflict is a limited politico-military struggle to achieve political, 
social, economic, or psychological objectives. It is often protracted and ranges 
from diplomatic, economic, and psycho-social pressures through terrorism and 
insurgency. Low-intensity conflict is generally confined to a geographic area and 
is often characterized by constraints on the weaponry, tactics, and level of 



Johnson 161 

violence. Or, as one recent essay put it, this term was developed "to describe 
a diverse range of politico-military activities less intense than modern conven- 
tional warfare." Either definition is sufficiendy broad to include the Vietnam war 
at one extreme and counter-terrorist measures at the other. It would be impracticable 
to consider here all facets of such a diverse range of conflict. In any case, the policy 
and decision issues now current have less to do with Vietnam-like wars and more 
to do with challenges of a different kind posed by terrorism, narcotics trafficking, 
dictators and rogue States. Still other low-intensity conflict challenges may be 
expected to arise from ideological zealotry, ethnic hatred, and political instability 
following the Soviet breakup. This bewildering multiplication of disorder requires 
that low-intensity conflict policy-making be conducted on a case-by-case basis. In 
such analysis fundamental rules of prudence should supplement the moral restraints 
of just war tradition. There is always far more wrong in the world than the most 
powerful of nations can remedy. The United States should choose first from among 
the ills it can mitigate those that jeopardize its values and interests or those of its close 
allies. And military force may not necessarily be the best response for all of these first 
order threats. 

Let me comment briefly on two specific types of challenges in response to 
which use of military force may be justified: terrorist activity directed against the 
United States at home or abroad and the narcotics trade. 

Terrorism proven to be State-sponsored is clearly an act of war to which a 
military response is justified. Even when it is legitimate, recourse to arms may 
not be the most appropriate or practical response to terrorism, but such prudential 
considerations do not vitiate the right to resort to force. The moral issue here is 
the same as for other possible uses of force: the need to satisfy the various 
conditions that define the just v/arjus ad helium. 

Satisfaction of the defining conditions does not, however, support the argu- 
ment that what may be done must be done. Critics of the 1986 American air 
strike against Libya have frequently argued that the action was wrong because 
Iran and Syria were more to blame for the terror bombing in Berlin that 
occasioned the strike. According to this criticism, it was inconsistent and 
somehow unfair to target Libya alone; we should also have retaliated against the 
other States. This is a spurious argument. One is never morally required to do 
everything one may morally do. One may punish wrongdoing, says just war 
tradition; one does not have to do so. But not all who advanced the argument from 
consistency seriously wanted to punish Iran and Syria as well as Libya. In some cases, 
it thinly veiled an effort to deny any and all use of military force against State-spon- 
sored terrorism; that is, the argument was pacifism in the guise of a push for 
consistency. When advanced in good faith, the consistency argument ignores the 
prudential concerns inherent in just war tradition and good statecraft; when used 
disingenuously, it seeks to deny that force may be used for moral purposes. 



162 Legal & Moral Constraints on Low-Intensity Conflict 

Broadly, then, the moral questions involved in deciding whether to use 
military force to respond to a terrorist act are not different in kind from those 
bearing on the use of military force in response to an overt act of hostility. Just 
cause must still be proven to exist, although this is more difficult in the case of 
terrorist acts in which State sponsorship is suspected. Right authority must still 
be satisfied in the form of both national command authority and public support 
for the decision to use force. So also should the other concerns of the jus ad helium 
be attended to: right intent, proportionality of harm inflicted to damage done 
and values at stake, reasonable hope of success, last reasonable resort, the goal of 
a peace resting on justice and good order. 

The other particular case I want to treat briefly here is that of using military force 
to interdict, deter, and punish narcotics traffickers. Unlike State-sponsored terrorism, 
the organized narcotics trade often operates out of secure enclaves within countries 
whose governments, like those of Colombia and Peru, are too weak to root them 
out. The trade may even, as in Peru, be linked with a revolutionary movement at 
war with the national government. Under these circumstances, the use of military 
force to break up drug enclaves and open them to more standard means of police 
action seems highly appropriate. Given the direction of the narcotics traffic from 
these countries to the United States, I would argue that just cause exists for the use 
of military force, expressed in the classic language, "to repel injury" and "to punish 
wrongdoing." But at the same time, the inability of friendly national governments 
to act by themselves constrains our use of this justification. The prudential require- 
ments of the just war tradition may not be satisfied by unilateral American military 
intervention. Here is a case in which the scale of possibilities implied by just war 
tradition matches that of good statecraft. Beginning with efforts to bolster the 
counter-narcotics capabilities of a host government, the range of justifiable options 
ascends to an invited military intervention, turning to unilateral intervention only 
when all other possibilties have been exhausted. Again, we have a case in which a 
just cause may be present, but other concerns must also be taken into account to 
determine whether use of military force is justified. 

B. Specific Issues in the Choice of Means 
(the Jus in Bello of Just War Tradition) 

1. Observing Discrimination and Proportionality in Low-Intensity 
Conflict. In operational terms, the just war tradition is one of limited war. 
Within the realm of what it is both justified to do and possible to do , jus in bello 
requires that military plans be subjected to a closer degree of critical scrutiny 
through the lens of discrimination and proportionality, the two principles that 
bear on the conduct of justified military activities. The commander who takes 
these criteria into account before issuing orders will attempt to focus his forces 
on the particular targets most closely connected with the activity being punished. 



Johnson 163 

That is, if both targets are in the same range of possibility, it is morally preferable 
to strike at a training camp for terrorists than a barracks complex for uniformed 
military, and, similarly, an attack against a drug baron's private enclave is 
preferable to imposing broad sanctions on his country, the burden of which 
would fall disproportionately on innocent people. 

This rule of thumb also guides the targeting of terrorists when State sponsor- 
ship cannot be conclusively proven and a counter-State strike is impractical. 
Israeli air strikes against terrorist sanctuaries in Lebanon demonstrate how this 
approach can be used, but also reveal its limitations. Principled targeting requires 
excellent intelligence, but may still fall short of locating the most deserving sites 
for retaliation. Cross-border air strikes often provoke criticism for violating 
territorial sovereignty, and may cause harm beyond their intended targets. Yet, 
in a struggle where terror and counter-terror reciprocate unceasingly, these 
methods observe more often than not the principles of discrimination and 
proportionality. 

2. The Targeting of Specific Individuals. Pushed to their logical limits, 
these two principles may be thought to hold some justification for a strategy of 
decapitation and ultimately, in some cases, the targeting of specific individuals. 
But, in making moral judgments, logic is not everything, and this is particularly 
true when they are based in just war tradition. As a body of moral wisdom 
founded in historical experience and reflection, it is less a logical system of rules 
than a collection of normative conditions from various sources. There are, in 
fact, counter-currents within the tradition on the question whether specific 
individuals may be targeted. 

On the positive side, the targeting or assassination of individuals guilty of 
capital crimes can be argued to be the most discriminate and proportionate action 
possible because it avoids the collateral deaths and destruction that accompany 
military strikes. A terrorist known to be responsible for a bombing would seem 
an appropriate object for discrete retribution. Singling out leaders of terrorist and 
narcotics trafficking organizations, without whom their groups could not func- 
tion, seems similarly faithful to the logic of discrimination and proportionality. 
Capture can be argued to be even more attractive, since it allows targeted 
individuals to be tried before a court. 

But there are serious negative arguments as well. Least problematic is capturing 
an individual to bring him to trial. Yet such action is not entirely clean, because it 
may violate both international law and the law of the country where the abduction 
occurs. Arguments for targeting individuals are less than clear; arguments against 
depend on the attitudes of the international community and the country 
involved. 

Assassination raises significant additional difficulties, even if we set aside the 
fact that it is against United States law. As punishment for crimes committed, it 
is an imperfect form of justice because of the absence of a fair trial. It also violates 



164 Legal & Moral Constraints on Low-Intensity Conflict 

our cultural understanding of the nature of war, which has traditionally looked 
askance at targeting individuals. This is a serious problem that requires to be 
examined a bit further. 

The just war tradition incorporates the western view of war as conflict among 
organized groups. In keeping with its strong prejudice against singling out 
individuals, Christian soldiers in the West well into the Middle Ages were 
required to do penance after battle in case they had fought with wrong 
intention — including hatred of a specific enemy and fighting with intent to harm 
him. The chivalric code likewise stressed that combat was a test of valor and 
prowess, not an effort to kill other persons; a fallen knight was to be taken 
prisoner. Kings and nobles leading their men in battle were, however, considered 
fair game for combatants seeking the tactical advantages to be gained by rendering 
their opponents leaderless, so long as this was not an excuse for the pursuit of a 
personal vendetta. Moreover, what was permissible on the field of battle was 
strongly condemned if it happened in the tent. One may see two principles at 
work here: that war is not about death but about prevailing, and that war is a 
social and not an individual activity. Assassination satisfies neither principle: it 
simply does not look like war. 

A further negative factor was a general cultural uneasiness about regicide. 
Kings who had initiated unjust wars or who had been guilty of particular crimes 
against their own subjects are the closest historical analogy we might find to a 
modern-day Qadhafi or Saddam Hussein. Both feudal law and religious doctrine 
allowed for such a king to be removed from power, by force of arms if necessary. 
But the goal was not to kill him, though this might happen in battle; rather the 
purpose was to remove him from power and to keep him from resuming power 
by imprisonment or exile. Why was regicide so suspect? One reason was the 
ancient belief that an aura of sanctity surrounded a king's person, so that shedding 
his blood involved much more than shedding the blood of an ordinary mortal. 
Another reason for the traditional aversion to regicide was the fear that it could 
shatter the brittle order of feudal society with an uncontrollable chain of reprisals. 
I suspect that these concerns retain a considerable influence in contemporary 
thinking. And it is not unreasonable to expect that American complicity in the 
assasination of a foreign head of State could place the life of our own president 
at risk. 

Our cultural predjudice against assasination also stemmed from a dislike of the 
means involved. A favorite weapon of regicides, poison has historically been 
regarded as a means mala in se (evil in itself). A use of arms that denied the victim 
a fair fight was considered dishonorable. Trapping the target or luring him into 
a vulnerable position was also thought likely to depend on an inadmissible use 
of deception. 

Finally, and by no means least, assassination has simply always looked too much 
like murder. If it is not war, if it is brought about unfairly, by stealth or by 



Johnson 165 

deception or by means bad in themselves, it has many of the attributes of murder. 
It may be argued that the two are not in fact the same, but they are enough alike 
to create a general cultural suspicion of assassination. 

For all these reasons, just war tradition has never explicidy taken the logic of 
discrimination and proportionality to justify or imply assassination. Nor would I. 
There is no reason to use this moral tradition to argue against the United States 
legal proscription of assassination. 

3. Covert vs. Overt Means: Destabilization vs. Use of Military Force 
in Low-Intensity Conflict. Just war tradition is about the justification and 
limits of the use of military force; covert means in the modern sense are largely 
outside the purview of those who have contributed to its development. The use 
of means mala in se or inadmissible deception, as discussed in the previous section, 
are among the few cases where the tradition does touch on covert methods. But 
in general there is no reason to read into just war reasoning any particular 
preference for overt as opposed to covert forms of action. While covert actions 
may be harder to judge because their purposes and means are kept secret, the 
same conditions apply to both: the action in question must be justified by the 
terms of the traditional jus ad helium, and the means should conform to the terms 
of the jus in hello . 

These conditions do not define or justify any specific action; rather, they tend 
to describe a range of actions ascending to the overt use of force, and then go on 
to distinguish among the categories and degrees of force. The jus ad helium 
principles of proportionality and last resort are particularly interesting in this 
regard, because they imply that it is possible for covert means to accomplish more 
good while causing less harm than military action. 

Destabilization is also morally attractive as an alternative to the use of force. 
The problem here is not with the jus ad helium conditions but with those that 
consider the consequences of the means used. As shown by the economic 
sanctions imposed on Iraq after the invasion of Kuwait, these means may depend 
for their effect on the harm done to the populace in general, intentionally 
targeting noncombatants. The use of military force in the case of the Gulf War, 
as I have argued elsewhere, was morally preferable to slow economic strangu- 
lation. Overt or covert support of indigenous insurgent groups raises another set 
of issues. Moral deliberations are complicated by the fact that the concerns of 
just war tradition must be judged to be satisfied both for the guerillas and for the 
nation giving outside support. These concerns may quickly become tangled in 
non-moral policy or prudential considerations as well. Indeed, the controversy 
mounts less over fundamental moral questions such as just cause, than over 
speculation as to whether the indigenous forces can succeed, how much help 
they need, if it should be overt or covert and whether the policy will actually 
improve matters. This is well illustrated by the debate in the United States over 
aid to the Kurdish and Shiite rebellions in Iraq that followed the Gulf War. There 



166 Legal & Moral Constraints on Low-Intensity Conflict 

was strong consensus that Saddam Hussein had forfeited any legitimate claim to 
continue to rule Iraq. It was also widely agreed that the Kurds and the Shiites 
were right to revolt against him given their long history of oppression and the 
ferocious campaign his forces were waging against them. Against these facts were 
prudential judgments about whether these two groups, or either of them, could 
succeed in toppling the central government, whether they could unite the 
country or would only end by fragmenting it, and whether they would establish 
a less problematic new government or only a new one that would be problematic 
in different ways. These prudential concerns are of course also moral concerns, 
reflected in the just war criteria of reasonable hope of success, last resort, and the 
goal of peace. When they are the source of serious doubt, they have the effect 
of setting restraints on what might be allowed according to the principles of just 
cause and right intention. 

Each case, then, must be judged on its own merits. Destabilization by means 
covert or overt is prima facie attractive by comparison with resort to military 
force; yet final judgment depends on weighing the means employed and their 
consequences. 

4. The Permissibility and Limits of Deception. Above I have spoken 
of "impermissible deception" as a factor in shaping the concrete content of just 
war tradition. What is permissible and what is not? The answer is far from clear 
in the historical sources, where the two concepts are used with no manifest 
agreement as to their content. The lack of clarity continues down to the present, 
yet there has been gradual development in some areas. Broadly, the identifying 
mark of impermissible deception is the intentional blurring of conditions imposing 
moral restraint on the use of force. This convention may be illustrated by a 
historical example. Through much of the Middle Ages non-knights in arms were 
slaughtered if captured. While this was in part an effort to restrict the use of arms 
to the knightly class and thus secure its power, it also reflected a fear of 
peaceable-looking people who might turn on a soldier when his guard was down. 
Non-knights were, by the end of the Middle Ages, accepted into armies by being 
organized under responsible commands, but the fear of the deceptive peasant 
developed into a general cultural rejection of partisans that continued at least 
until the 1860s. Then Francis Lieber, charged to give legal guidance to the United 
States Army in the Civil War set out principles that in time became positive 
international law. His work is perpetuated in the Hague Convention, which 
requires that partisans serve under responsible commanders, wear identifying 
clothing or insignia, carry their arms openly, and fight according to the accepted 
laws of war. Yet the old fear of the deceptive peasant has hardly been laid to 
rest. Michael Walzer, in Just and Unjust Wars, recalls a case from World War II 
that could have occurred, given different weapons, at any prior time in history. 
The Vietnam war brought the problem of the deceptive peasant to center stage 



Johnson 167 

for American troops, who often found it hard to distinguish combatants from 
noncombatants in guerilla-controlled territory. 

With a degree of trepidation, I will draw some cautionary observations from 
this unclear history. Deception in itself is not a moral problem; yet in some forms 
it does raise moral questions. In particular, there may be violations of fairness 
which lead to acts that resemble murder more than war; this is one of the 
difficulties with assassination, as noted above. It is also the problem Walzer's 
example presents. There are other forms of deception which erode the possibility 
of observing noncombatant immunity, as amply demonstrated by our experience 
in Vietnam, where it was often impossible to distinguish the Viet Cong from 
civilian noncombatants. Or deception may depend on putting noncombatants at 
risk. This is the problem posed by Mao's dictum that guerillas should live among 
the populace like fish in the sea, and it is the problem posed by the PLO's habit 
of basing itself in the midst of civilian settlements. I believe that all these cases 
involve impermissible deception and, while there may be other variations of this 
practice, its distinguishing characteristic remains the obscuring of conditions that 
impose moral restraints on the use of force. Other forms of deception that do 
not undermine these restraints are permissible. 

III. Conclusion: Conditions for the Moral 
Use of Force in Low-Intensity Conflict 

The burden of my argument in Part II of this paper has been to demonstrate 
that the precepts of the just war tradition are particularly well suited to clarifying 
the moral perplexities of low-intensity conflict. To summarize: 

1) The terms and conditions defined in the jus ad bellum and jus in hello of 
just war tradition should be the basis for deliberation on the morality of 
particular policies and actions in low-intensity conflict. These terms and 
conditions may imply the use of force and set limits to it, or they may imply 
means short of force. The rules drawn from just war tradition apply equally 
to low-intensity conflict and full-scale war, but they encounter different 
challenges in each. When the United States has formally declared war, the 
condition of right authority has been satisfied by the congressional decla- 
ration, which ideally follows from an assessment that just cause, right 
intention, and the other^M* ad bellum conditions are satisfied. In low-inten- 
sity conflict situations, a congressional pronouncement is absent, and the 
jus ad bellum concerns must be addressed differendy, but they must be 
satisfied. 

2) In assessing the justification for involvement in low-intensity conflict, 
what may morally be done does not by itself dictate what must be done. 
Even where just cause exists, remedying the evil in question may be the 



168 Legal & Moral Constraints on Low-Intensity Conflict 

wrong choice for a number of prudential reasons. As I have argued above, 
there is always far more wrong in the world than one nation, even a very 
powerful one like the United States, can right. Even among those ills it is 
in our power to remedy, our first priorities must be those that directly 
challenge our own values and interests or those of our close allies. Among 
these first order threats there may be some against which military force 
offers an effective remedy and is the only likely solution, but there are others 
for which military force is not the best answer. The full set of moral criteria 
found in just war tradition provide guidance for making the distinction. 

3) Intervention in low-intensity conflict should enjoy a broad measure of 
support in the international community and seek to establish values broadly 
recognized in that community. It has often been argued in the recent past 
that the United States should not try to be the world's policeman. This 
view is valid insofar as it seeks to discourage unsustainable commitments, 
imprudent risks to our interests, or reckless reliance on unilateral action. In 
the post-Cold War world, however, there is a greater possibility of 
achieving substantial international agreement on the kind of activities that 
warrant an unconventional response, extending, if necessary, to the use of 
force across national borders. This suggests that an underlying consensus is 
also developing in support of the use of collective action to meet moral 
challenges to the international order. These changes should make it possible 
for the United States to bring its national power to bear against threats to 
international comity. We may be able to attack systematic human rights 
violations, State-sponsored terrorism, regional aggression, and the global 
traffic in narcotics — not as a lonely paladin — but with the approval and 
support of the community of nations. 

Finally, all the above presumes that the United States will continue to honor 
its democratic heritage and the whole panoply of values which guided its 
founding as it confronts the ambiguous challenges of low-intensity conflict. 

Notes 

♦Professor Johnson is the Director of International Programs at Rutgers University. 

1 . Prominent examples are the usage of Paul Ramsey (see infra n. 10 and 11) and the National Conference 
of Catholic Bishops in The Challenge of Peace (1983). 

2. A prominent example is HOFFMANN, DUTIES BEYOND BORDERS (1981). 

3. See O'Brien, The Failure of Deterrence and the Conduct of War, in THE NUCLEAR DILEMMA AND THE 
JUST WAR TRADITION 158 (O'Brien and Langan eds. 1986). 

4. Thomas Aquinas, Summa Theologica I I/I I, Q. 40, Art. 1. 

5. A sample of such arguments is found in JOHNSON AND WEIGEL, JUST WAR AND THE GULF WAR 
91-158(1991). 

6. For fuller development of these arguments, see id. at 3-42. 

7. VICTORIA, DE JURE BELLI, section 10. See further the discussions of Victoria, Grotius, and other 
contemporary theorists in JOHNSON, IDEOLOGY. REASON. AND THE LIMITATION OF WAR 208 (1975). 



Johnson 169 

8. CHILDRESS, MORAL RESPONSIBILITY IN CONFLICTS: ESSAYS ON NONVIOLENCE, WAR, AND 
CONSCIENCE (1982). 

9. RAMSEY, WAR AND THE CHRISTIAN CONSCIENCE (1961). 

10. RAMSEY, THE JUST WAR: FORCE AND POLITICAL RESPONSIBILITY (1968). 

11. WALZER, JUST AND UNJUST WARS (1977). 

12. For fuller discussion of these two positions within a just war framework, see Johnson, Just War Thinking 
and Its Contemporary Application: The Moral Significance of the Weinberger Doctrine, 81-113 in THE RECOURSE 
TO WAR: A MORAL APPRAISAL OF THE "WEINBERGER DOCTRINE", (Sabrosky and Sloane eds. 1988) 
or Vol 1, Small Wars and Insurgencies, 146-70 (1990). 

13. Thompson, Lew-Intensity Conflict: An Overview, in LOW-INTENSITY CONFLICT 1-25 (Thompson 
ed. 1989). 

14. Id. at 2. 

15. LIEBER, GUERILLA PARTIES (1862). 

16. 1907 Hague Convention IV, Annex: Regulations Respecting the Laws and Customs of War on Land, 
Section I, Chapter I. 

17. The case is taken from Marcel Ophuls' documentary film The Sorrow and the Pity, a platoon of German 
soldiers is "on a march through the French countryside during the years of the German occupation. They 
passed a group of young men, French peasants, or so it seemed, digging potatoes. But these were not in fact 
peasants; they were members of the Resistance. As the Germans marched by, the 'peasants' dropped their 
shovels, picked up guns hidden in the field, and opened fire. Fourteen of the soldiers were hit." WALZER, 
JUST AND UNJUST WARS 176 (1977). 



Arbiter Mundi?: Commentary on 

James Turner Johnson's 

"Just War Tradition and Low-intensity Conflict" 



by 
Francis X. Winters* 



Introduction 

Assuming that the responsibility of the appointed commentators at the 
Conference is merely to initiate discussion by drawing attention to inviting 
topics for consideration, I have chosen to focus on that section of Professor 
Johnson's essay which is at once most policy relevant and most theoretically 
engaging. Perhaps the most illustrative passage in this section of the argument is 
the claim that: 

Specifically, I think the result is to open the door to clearly defined police-like 
activities involving the use of force to resist or remove what are broadly recognized 
threats to particular people or to international order as such. Just war tradition as 
a whole has always been much more open to such interventionary action than 
positive international law has become in the twentieth century. ... I suggest that 
under certain conditions now — conditions of egregious and unpunished viola- 
tions of rights or threats to the security of others — the burden of proof has shifted 
so as to distinguish between aggression and temporary, interventionary use of force 
to set right such violations and threats. 

As a possible stimulus to discussion, let me suggest some historical reservations 
about the comprehensive accuracy of the claim: "Just war tradition as a whole has 
always been much more open to such interventionary action than positive 
international law has become in the twentieth century." While it may be true 
that certain periods in the development of just war tradition have indeed been 
permissive in regard to State intervention beyond its borders (or the borders of 
an ally), it does not seem readily apparent that just war tradition as a whole "has 
always been much more open to such interventionary action than positive 
international law has become in the twentieth century." Indeed there seems 
ample evidence that in two of its most distinguished stages of development, the 
Paris School of the 13th and early 14th centuries and the closely related Salamanca 
School of the 16th century, the just war tradition was unequivocally hostile to 
external intervention by State authorities. It might even be justifiably claimed, I 



172 Legal & Moral Constraints on Low-Intensity Conflict 

would suggest, that the characteristic contribution of the authors of these two 
Schools (St. Thomas Aquinas and his disciple John of Paris, and Vitoria of 
Salamanca) was precisely to challenge the interventionist claims of the Holy 
Roman Empire in the 13th and 14th centuries, and of the Spanish Crown (and 
Roman Emperor) in the 16th centuries. If this historical claim can be established, 
it might be more accurate to assert that some (but not all) leading thinkers of the 
just war tradition were more interventionist than contemporary international law 
would allow. Such a modification of the profile of just war tradition might 
conceivably have consequences for our larger policy discussions throughout these 
days. 

Contemporary International Law 

The teaching of the just war tradition is presented in Professor Johnson's paper 
as a set of standards more open to intervention in the internal affairs of other 
sovereign nations than the stance enshrined in contemporary international law. 
Our analysis, then, must begin with a minuscule summary of the comparatively 
restrictive standard of the international legal tradition. A familiar summary of that 
tradition is found in the United Nations Charter (Chapter I, Article 2 (4)): 

All Members shall refrain in their international relations from the threat or use of 
force against the territorial integrity or political independence of any State. . . . 

Since the minimal content of the term "political independence'* is the nation's 
right to the government of its own choice, efforts by other governments to 
depose extant regimes (even dictatorial or drug trafficking regimes) unequivocally 
violates the prohibition stated in Article 2 (4). 

This international legal restriction of the threat, or use, of force in order to 
change or coerce other governments is, of course, an annoyance to powerful 
nations with a strong confidence in the superiority of their own sense of justice 
and in their own distinctive political institutions. A sense of the recent history of 
the evolution of the principle of nonintervention, as it is now articulated in the 
Charter, reveals that it was formulated precisely in reaction to the continuous 
intervention by the United States against its neighbors to the south in the early 
20th century. Robert Klein traces the emergence of the principle to the insistent 
demand by Latin American government officials for guarantees against threats to 
their political independence. Specifically, it was U.S. interventions in the staple 
of U.S. hemispheric policy, namely, Nicaragua, that ignited the Latin American 
demand for a principle of nonintervention (Seventh International Conference 
of American States, Montevideo, 1933). The United States voted for the 
resolution of nonintervention at this Conference. President Roosevelt sub- 
sequently refused to intervene to protect the President of Nicaragua, Juan Sacasa, 



Winters 173 

from removal by U.S.-anointed General Anastasio Somoza, head of the U.S.- 
designed National Guard. 

Klein then traces the origins of the U.N. Charter's fundamental principle of 
"sovereign equality" directly to the influence at the war-time conference 
planning the U.N. of Sumner Welles and Cordell Hull, whose own endorsement 
of the principle of sovereign equality had been nurtured by their decade-long 
diplomatic dealings with officials of Latin American nations who had ex- 
perienced, or feared experience, of U.S. intervention. The Charter's prominent 
support of the principle of sovereign equality, and its corollary of noninterven- 
tion, may then be seen as evidence of "the sins of the fathers being visited on 
their sons." U.S. interventionism thus sowed the seeds of the sovereignty 
principle now enshrined in the U.N. Charter. 

The principle of nonintervention is now under attack, or at least subject to 
continuous erosion. Alongside the history of recent controversial cases of U.S. 
interference in Nicaragua (1979-1986), and Panama (1989) one might only 
refer to two documents on low-intensity conflict which seem to assume the 
irrelevance of the international legal principle of sovereign immunity from 
intervention. The first is the Final Report "Joint Low-Intensity Conflict Project" 
prepared by the Project at the U.S. Army Training and Doctrine Command, 
Fort Monroe, Virginia (1 August 1986): ". . . the U.S. can provide support for 
... an insurgent force seeking freedom from an adversary government." More 
explicitly still, a subsequent Initial Draft of "Some Thoughts on Low-Intensity 
Conflict," originating at the Army- Air Force Center for Low-Intensity Conflict 
(Langley Air Force Base, Virginia (August, 1989)), seems to endorse assistance 
to insurgents seeking to overthrow the national government: 

The U.S. may assist a government or insurgent forces against a government. . . . 
The U.S. supports selective insurgencies opposing oppressive regimes who work 
against U.S. interests. 

Both these documents seem clearly to challenge the present academic under- 
standing of the legal norms concerning intervention. Both John Norton Moore 
in Law and Civil War in the Modern World and, in a more philosophical vein, 
Michael Walzer in Just and Unjust Wars, spell out the principles that allow outside 
assistance (up to a certain level and moment) to governments facing local 
insurgencies while condemning assistance to such insurgencies. 

The argument presented by Professor Johnson challenges Walzer's interpreta- 
tion of just war theory with two broad claims: that the tradition allows outside 
intervention against "petty dictators" and "drug traffickers" even apparently in the 
absence of any indigenous insurgencies challenging such regimes. Professor 
Johnson's permissive approach to the morality of cross-border reforms appears 
to represent a certain innovation in just war thinking, although it would be a 



174 Legal & Moral Constraints on Low-Intensity Conflict 

familiar argument from the more liberal "cosmopolitan" views of Charles Beitz 
and many others. 

Without entering at this point into the compelling question of whether such 
a "liberalization" of just war tradition would be politically and morally wise, I 
will confine myself to analyzing the historical claim that Professor Johnson 
presents for his more permissive approach to reform intervention in the name of 
the just war tradition. 

In arguing that the just war tradition as a whole cannot legitimately be said to 
favor a permissive approach to cross-border State actions designed to remove 
from power petty dictators and/or drug traffickers, I propose to draw attention 
not to the specific teachings about rights in warfare (jus ad helium, jus in hello) but 
to the overarching and controlling notion of justice, which is inextricably 
intertwined with the analysis of just wars in any era. For just war theory is 
obviously a corollary of theories about political justice itself. What, then, was the 
conception of just politics in the eyes of St. Thomas (and John of Paris) and later 
in the age of St. Thomas' disciple Francisco de Vitoria? From such a foundational 
inquiry we might come to a different interpretation of just war theory than 
Professor Johnson has arrived at for the tradition as a whole. 

Justice and the School of Paris: 
St. Thomas Aquinas and John of Paris 

The defining struggle of mid-1 3th and 14th-century Europe was the century- 
long political and intellectual confrontation between the Holy Roman Empire, 
on the one hand, and the forces of nationalism (in the Kingdoms of France, Spain 
and Naples), on the other. Among the many conspicuous political contributions 
of St. Louis IX of France was his steady defiance of the legal claims made against 
his authority by the Emperor. As early as 1254, Louis affirmed that his support 
of imperial legal codes in France was a sovereign choice of the French Crown, 
anxious to avoid distracting his realm by unnecessary legal innovation required 
to fashion a new legal code for France alone. King Louis' decree on the law 
explicitly negates the imperial contention that the legal force of the ancient codes 
was a symbol of imperial sovereignty in France. 

In this political context, St. Thomas lent the weight of his own considerable 
authority to King Louis' cause by providing a philosophical argument for a 
culture-bound and historically unique political order for the various ancient 
realms constituting Europe. St. Thomas' own political, and consequendy 
moral, philosophy was largely particularistic and relativistic. King St. Louis' 
successful effort to shield his own regal authority from the imperial pretensions 
of legal uniformity throughout Europe had the good fortune to be able to call 
upon the theological reasoning of one of the leading figures of the age. 



Winters 175 

These joint (political and theological) efforts to limit the legal authority of the 
emperor to "his own region" (Germany) bore fruit finally in the following 
century when the Emperor of the time had the poor judgement to summon the 
King of Naples to his court on the grounds of treason (laesae majestatis). The King, 
alongside the King of France, appealed to the Pope to rule on the canonical 
prerogatives of the Holy Roman Emperor. The Pope ruled that the Emperor 
enjoyed no legal authority in Naples or France. The claim of sovereignty for the 
several nations of Europe was thus ratified in canon law and entered into the 
political consciousness of Europeans. The meaning of sovereignty was precisely, 
then, the defiance of the universal pretensions of a particular realm, i.e. the Holy 
Roman Empire. The consequence of this theological and canonical revolution 
was the vindication of an international system of States. 

It appears, then, that the 13th and 14th century notion of justice (and of its 
corollary the just war) was shaped precisely to condemn interventionism on 
philosophical and theological grounds. This period cannot then be included in 
any catalogue of ages when concepts of justice encouraged interventionism. 

Justice and the School of Salamanca: 
Francisco de Vitoria 

It is perhaps coincidental that the leading architects of the natural law 
conception of justice (and its corollary, the just war theory) thought and taught 
in moments of great cultural crisis. Aquinas happened to be lecturing on theology 
in Paris at the dawn of the post-imperial age in Europe. In response to the moral 
challenge arising across the continent to choose between the traditional (and 
canonical) weight of imperial authority and the emergence of political pluralism 
within Christendom, Thomas had opted for the supremacy of regal sovereignty 
(immunity from the customary imperial claim of suzerainty in France). Thus, the 
new moral and political principle of national sovereignty constituted a declaration 
of independence for France (and the other kingdoms) from the constraints of 
empire. This cardinal development in the natural law tradition shaped all 
subsequent interpretations of justice (and just war thinking). 

Two centuries later, another cultural crisis gripped Christendom, namely, the 
opportunity to navigate the seas and explore "the Indies." 

Spain, sailing to the New World, sent with its conquistadores their Dominican 
chaplains, who quickly discovered the moral ambiguity of the unexpected cultural 
encounter with alien civilizations. The missionaries included Fra Bartolomeo de las 
Casas, an early colonial landlord himself who became a crusader for Indian rights. 
By his correspondence with Spain, he engaged the Court, and equally decisively, 
theologians of Valladolid and Salamanca in the challenge of justifying, or denounc- 
ing, the imposition of Spanish rule in America. Among his Dominican colleagues 
unsettled by the lurid accounts of the tragic circumstances of the newly conquered 



176 Legal & Moral Constraints on Low-Intensity Conflict 

peoples was the young Dean of the Faculty at Salamanca, Fra Francisco de 
Vitoria. 15 

Vitoria was amply prepared to undertake the task, for his own theological 
studies had been made at Paris, where he benefitted from a renaissance of 
Thomistic political and moral thought. He was, then, from an early age imbued 
with the Thomistic insistence on the right of national sovereignty, that is, the 
conviction that the several disparate European realms were independent of any 
overlord, including the Emperor. The base line of Vitoria's analysis of the ethics 
of "the conquest," then, was the primordial principle of sovereignty, the nation's 
immunity from external intervention. 

Vitoria's own decisive contribution to the natural law understanding of justice 
was to conclude that sovereignty was a two-edged sword: just as Thomas had 
elevated the principle as a check against German imperial claims against the 
independence of France, so Vitoria insisted that the still unfamiliar nations and 
tribes encountered across the seas were sovereign in their own right and immune 
from coercion by the Spanish Crown. Vitoria's cardinal contribution to the 
tradition may have owed more to his strength of character and his penchant for 
intellectual consistency than to any intellectual genius. For it took a man of 
considerable fortitude to stand up to the pressure of public (and royal and 
ecclesiastical) zeal for the conquest in his defense of the newly discovered people 
in the Americas from the claim that, as barbarians, they had no rights. Affirming 
the Spanish right to travel, to trade, and to preach in the Indies, Vitoria 
nevertheless challenged the wider claims of political and religious superiority and 
jurisdiction in the Indies. 

Vitoria's explicitly drawn corollaries on the justice of war in the Americas 
were that wars fought against the native peoples, except in self-defense, were 
unjust, while Indian defensive wars against the Spanish were justified. 

The School of Salamanca, like its inspiration at Paris, contributed to the 
understanding of the principle of sovereignty by insisting that the right which 
defies rule from abroad likewise must renounce the aspiration to rule from abroad 
by coercion. At least these two decisive centers of just war thinking represent a 
challenge to, rather than a justification of, intervention. 

Conclusion 



It might be preferable if the ethical question of whether the U.S. should 
unilaterally depose governments which it perceives as dictatorships and/or drug 
traffickers were merely an academic matter. For better or worse, this is not the 
case. In the "low-intensity" intervention dubbed "Operation Just Cause," U.S. 
citizens saw a classic demonstration of the dynamics of U.S. hemispheric 
house-cleaning in the post-Cold War era. It was to some a chilling exhibition 
of the self-righteous application of overwhelming force against a hapless and 



Winters 177 

despicable despot/drug trafficker. Military victory was swift, yielding a prisoner 
in the docks at Miami awaiting the judgment of his non-peers. 

What were the consequences of this perhaps precedent-setting engagement 
in low-intensity conflict? At Congressional Hearings in July, 1991, the unani- 
mous judgment of witnesses was dismal. Eva Loser (Fellow, The Americas 
Program, Center for Strategic and International Studies), captured the spirit of 
the hearings in her assessment: One-year-after-the-invasion-type articles trum- 
peted the cynical joke within Panama that General Noriega has been replaced 
by "General Discontent." Other witnesses concluded that neither the judicial 
process, the national administration, the legislature, the new Public Defense 
Force, nor the economy is functioning. To add a dash of irony to this assessment, 
Dr. Richard Millett of Southern Illinois University adds that a notable conse- 
quence (or sequel) to Operation Just Cause has been the emergence of an 
exacerbated domestic drug problem in Panama. Additionally, the witnesses 
warned the Subcommittee that Panamanian dependence on the U.S. has been 
heightened, and the U.S. responsibility for the failings of the new government which 
it installed during the invasion was cited as a claim for further reform intervention 
and additional financial support. 

Even before these wholly predictable indigenous consequences became evi- 
dent, the Organization of American States on December 23, 1989 in an 
unprecedented resolution, condemned the invasion by a vote of 20 to 1. The 
response of the U.S. State Department was: "We are disappointed that the O.A.S. 
missed an historic opportunity to get beyond its traditional narrow concern over 
non-intervention. The resolution is unbalanced. It does not cite the root 
problem — Noriega — and it fails to recognize the threat to Americans." 

I am inclined myself to believe that the condemnation of the invasion by 
twenty Latin American governments is much closer to the genius of the just war 
tradition than the U.S. State Department deploring of the OA.S.' "traditional 
narrow concern over non-intervention." 

Afterword 

Ethical Considerations Relevant to the Possibility 

of Low-Intensity Conflict Used to Resolve 

Problems of State-Sponsored Terrorism or Proliferation 

of Weapons of Mass Destruction 

Much less problematic ethically than the use of force to depose dictators or 
drug traffickers is the possibility of such limited military response to State-spon- 
sored terrorism or proliferation of nuclear weapons. 

(1) State-Sponsored Terrorism: The Government Sponsored or 
Supported Use of Force Against Civilians of Other Nations. By just war 



178 Legal & Moral Constraints on Low-Intensity Conflict 

standards, such acts are acts of war (the employment of force to coerce other 
governments) which violate the traditional standard of non-combatant im- 
munity. They are therefore immoral and may be resisted and/or punished by 
military means, observing the traditional limits of proportionality and discrimina- 
tion. Such conclusions seem relatively uncontroversial corollaries of the just war 
tradition. 

Additional questions about the justice of such means (for example, against 
Libya in 1986) may be raised on two counts: 

(a) Chance of success. Since the exercise of this right in the Libyan case 
has yielded ambiguous results, judgment must be deferred on the question 
of feasibility. 

(b) Unilateral authorization. It seems reasonable to ask whether some 
concerted multilateral efforts (e.g. sanctions approved by the Security 
Council) might be more effective. One might even contemplate the 
possibility of excluding from the U.N. all members proven to be sponsors 
of terrorism. 

(2) Proliferation of weapons of mass destruction. This newly surfac- 
ing question is intellectually daunting. The chance of resolving it by recourse to 
the just war tradition is slight. For those States most likely to be able to execute 
low-intensity conflict attacks against such proliferators are almost certainly armed 
themselves with weapons of mass destruction. This double standard, which is 
morally intelligible and defensible, represents a novel challenge to the just war 
tradition for which that tradition may not indeed have any constructive response. 

The present urgent case of response to Iraqi refusal to honor its cease-fire 
treaty is easily resolved. Signing the treaty was a legitimate sovereign choice by 
Iraq, the execution of which is a matter of legal and moral obligation. Failure to 
fulfill these treaty obligations would, I believe, be a just casus belli. 

Notes 

♦Father Winters is Associate Professor of Ethics and International Affairs at The School of Foreign Service, 
Georgetown University. 

1. Johnson, supra, 147 at 160. The same argument is adumbrated earlier in the essay 158-159. 

All this historical reasoning argues strongly that just war tradition allows the use of force on legitimate 
sovereign authority against the sorts of adversaries encountered in low-intensity conflict contexts: 
terrorists, drug traffickers, petty dictators who use the resources of their countries for their own purposes 
and against the good of their people. Indeed, historically there is more than a mere allowance to be found 
in the historical record: there is downright hostility toward such threats to the order, justice, and peace 
of good political communities and of the natural rights of innocent people victimized by such activities. 



Winters 179 

Nor, in principle, does the 'right authority' to use force to combat such threats extend only to a 
nation's borders, so that the wrongdoers in question can take refuge in an international 'no man's land' 
or behind the legal wall of another nation's formal sovereignty. Rather, force may be employed across 
borders in cases of serious threats that can be dealt with in no other way. 

2. KLEIN, SOVEREIGN EQUALITY AMONG STATES: THE HISTORY OF AN IDEA 98-99 (1974). 

3. Id. at 100-01. 

4. Id. at 109-13. 

5. This entire period is narrated in KlNZER, BLOOD OF BROTHERS: LIFE AND WAR IN NICARAGUA 
(1992). The destabilization of Anastasio Somoza Debayle in July, 1979, is narrated in LAKE, SOMOZA 
FALLING: THE NICARAGUA DILEMMA: A PORTRAIT OF WASHINGTON AT WORK (1989), and in 
PASTOR, CONDEMNED TO REPETITION: THE UNITED STATES AND NICARAGUA (1987). Pastor's early 
history (Chapter II, "A Fractured History") reveals the continuum of "reform-intervention" throughout the 
twentieth century. 

6. Cf. infra, Conclusion, at 176-177. 

7. Final Report, Joint Low-Intensity Conflict Project, U.S. Army Training and Doctrine Command, Fort 
Monroe, Virginia (1 August 1986), at 4. 

8. Initial Draft, Some Thoughts on Low-Intensity Conflict, Army-Air Force Center for Low-Intensity Conflict, 
Langley Air Force Base, Virginia (August, 1989), at 2-7, 2-8. 

9. MOORE, LAW AND CIVIL WAR IN THE MODERN WORLD (1974). Compare Moore's Chapter I, 
Toward an Applied Theory for the Regulation of Intervention, 26-27 with WALZER, JUST AND UNJUST WARS 
86-108 (1977), seeks to interpret the substance of international law on intervention for a layman. 

10. Walzer and Johnson agree that the right of sovereignty is not absolute, for it is generally understood in 
the natural law tradition that sovereignty, like all other human rights, is an instrument of human welfare. 
Non-intervention is, therefore, a moral and legal prohibition which may, under some circumstances, be 
overridden by the prior imperative of the common good, or occasionally by the possible threat to the good of 
neighboring nations. The decisive question, which evokes the specter of casuistry which accompanied the 
natural law tradition at its best moments, is to define or identify those exceptional circumstances in terms general 
enough to serve as a standard for decision-making. 

Johnson points to at least two such cases in which he seems to argue that the just war tradition lends support 
to principled abrogations of sovereignty: (1) "egregious violations of generally accepted human rights" (page 
29); [cf. 47: "systematic and ongoing violations of human rights"] and 2) "Broadly recognized threats to a 
particular people or to international order as such" (p. 30); [cf. p. 47: "threats to international order and the 
security of other States by regional hegemons, and the global traffic in narcotics"]. Elsewhere, Johnson 
specifically identifies the perpetrators of these violations as "petty dictators who use the resources of their 
countries for their own purposes and against the good of the people," and "drug traffickers" (pp. 26-27). Against 
such offenders, one may legitimately appeal to the just war tradition to invoke the use of force (p. 26), according 
to Johnson. 

These two claims seem to me to constitute novel (if perhaps desirable) extensions of the just war tradition, 
rather than ready corollaries of it. The claim for the use of force against drug traffickers within another country 
rests on the premise that officials of foreign governments (e.g., the U.S.) should "give and enforce the law" 
about drug production/distribution in nations such as Colombia and Peru, even without the agreement of the 
governments, "as a last resort." (p. 35). I regard this claim as possibly unprecedented in the literature on the 
just war tradition and probably contrary to the views on sovereignty of at least Thomas Aquinas and Vitoria. 
(cf. footnotes 12-16, infra, with accompanying text). (There may indeed be other leading authorities in the 
tradition who would support such a position, although I am unfamiliar with such sources.) 

The associated claim, that military force may be invoked against "petty dictators who use the resources of 
their countries for their purposes and against the good of the people" (pps. 26-27), seems to me equally 
unfamiliar as a traditional stance of the just war tradition. For the determination of the fact of "tyranny" in 
medieval political culture was a judgment reserved strictly to those people themselves who were its victims. 
The little-understood medieval tradition of a right to revolution was historically understood as an exclusively 
domestic prerogative and obligation. (Several brief passages representative of a vast literature may be found in: 
CARLYLE AND CARLYLE, A HISTORY OF MEDIEVAL POLITICAL THEORY IN THE WEST (1928 and 
after), III, 122-146; V, 36, 92, 105-120, and 460-469; and, VI, 75-78; GIERKE, POLITICAL THEORIES OF 
THE MIDDLE AGE, at 74-77 (Maitland trans. 1938); and WILKS, THE PROBLEM OF SOVEREIGNTY IN 



180 Legal & Moral Constraints on Low-Intensity Conflict 

THE LATTER MIDDLE AGES at 108, 121-24, 211, 222-223 (1963). In these passages, references to judgement 
by the community are constant. 

The extension to non-nationals of the right to make judgements about the presence of tyranny on the part 
of officials of governments may (or may not) be a sound instinct of the present age. I am aware, however, of 
no historical grounds to argue that such a trans-border extension can be supported on the authority of the just 
war tradition. 

For these reasons, I would judge that Johnson's appeal to the tradition as an authority to support 
low-intensity coercive actions against the States guilty of dictatorship or drug trafficking represents an extension, 
rather than an application, of the tradition itself. Walzer seems closer to the historical tradition when he limits 
intervention to a response to "massive violations of human rights," identifying such violations as: "the 
enslavement or massacre of political opponents, national minorities, and religious sects." (JUST AND UNJUST 
WARS, at 101,) From my reading of the authors, I would judge Walzer's restriction of intervention to 
quasi-genocidal acts to represent a more traditional instinct than Johnson's proposed use of force against "petty 
dictators and drug traffickers." 

11. BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS (1979). 

12. Ullmann, The Development of the Medieval Idea of Sovereignty, The English Historical Review 1-33 (1949). 

13. The same insistence on the cultural determinants of moral obligation and political systems in St. Thomas' 
political philosophy' is found in WILKS, THE PROBLEM OF SOVEREIGNTY 140 (1963). 

14. For a concise summary of the career and contribution of de las Casas, see Collard's Introductory Essay 
to his translation of de las Casas' History of the Indies, ix-xxiv (1971). 

15. For the life and teaching of Vitoria, cf. HANKE, THE SPANISH STRUGGLE FOR JUSTICE IN THE 
CONQUEST OF AMERICA (1949). 

16. An interpretation of Vitoria's teaching can be found in Winters, Freedom to Resist Coercion, Common- 
weal, 369-72 (1991). 

17. Testimony presented before the Subcommittee on Western Hemisphere Affairs, U.S. House of 
Representatives, 17 July 1991, page 2. 

18. Id. at 4-5. 

19. The Washington Post, 23 December 1989, at A7. 

20. Id. 



Chapter VII 

Just War Doctrine's Complementary Role 
in the International Law of War 



by 
William V. O'Brien* 



Introduction 

Revived just war doctrine has increasingly been invoked by the United States 
government and armed forces in the contemporary era. As the American 
tradition of respect for international law continues, the moral warrants and 
limitations of just war doctrine have increasingly been called upon to comple- 
ment the legal prescriptions of the positive law of war. This is not surprising. 
Historically, just war doctrine and the international law of war developed 
concurrently. This was and remains especially true with respect to war-conduct 
law (jus in bello). As legal positivism displaced natural law and other higher law 
normative approaches in the 19th and early 20th centuries, just war doctrine 
virtually disappeared except as a chapter in the history of ideas. Collapse of the 
positive international law of war in the total wars of World Wars I and II, the 
nuclear balance of terror, the multitude of revolutionary/counterinsurgency wars 
complicated by multiple interventions and counterinterventions, and the increase 
in terrorism all contributed to a sense that international law needed reinforcement 
in some cases and replacement in others. 

The most significant evidence of the relevance and importance of just war 
doctrine to political and military policy decisions has been furnished by the 
United States government and military. Government and military leaders have 
understood that there must be persuasive legal and moral arguments justifying 
decisions to use armed force if Congressional and popular support is to be firm. 
Terms common to the international law of war and just war doctrine, e. g., 
proportionate force, discrimination, measured response, have been employed in 
official statements. This trend was epitomized in key addresses by Secretary of 
Defense Caspar W. Weinberger and Secretary of State George P. Shultz. 
Emphasis on U.S. efforts to observe the principles of proportion and discrimina- 
tion was prominent in the Department of Defense's Interim Report ofjuly 1991 
on the Persian Gulf Conflict. Moreover, just war doctrine is studied in the 



182 Legal & Moral Constraints on Low-Intensity Conflict 

service academies and at the highest levels of military education in the service 
colleges. 

The emerging functions of just war doctrine as treated in theory and practice 
within the United States government and the armed forces are: 

(1) to provide a framework for moral analysis of security issues; 

(2) to complement the positive international law of war as it is applied in 
security-decision processes as a source of policy guidelines; and 

(3) to complement positive international law in official statements justify- 
ing U.S. policies and conduct to the American people and the world. 

Just War Doctrine as a Complement to 
International War-Decision Law (Jus Ad Bellum) 

Contemporary international war-decision law is based on two overlapping 
bodies of law. The first is the law with regard to recourse to armed force as set 
forth in the United Nations Charter and interpreted and applied by belligerents. 
The second is the law emanating from the principle of non-intervention. 

UN war-decision law is based on Article 2 (4) which prohibits "the threat or 
use of force against the territorial integrity or political independence of any State, 
or in any other manner inconsistent with the Purposes of the United Nations." 
UN war-decision law then provides for two forms of legally permissible recourse 
to armed force: 

(1) enforcement actions ordered by the Security Council in virtue of 
Article 42 against a State found by the Council to have caused "a threat to 
the peace, or act of aggression" as provided in Article 39 (including 
enforcement actions ordered by the Security Council which utilize regional 
organizations as provided in Article 53); and 

(2) individual and collective self-defense, pending Security Council action, 
as provided under Article 51. 4 

These war-decision provisions have been subject to considerable interpreta- 
tion. Roughly, these interpretations can be divided between strict, literal versions 
and more permissive "reasonable" versions. The debate among publicists and 
among advocates and critics of U.S. and other war policies has centered on 
individual and collective self-defense as recognized in Article 51. This has been 
the case since, until Desert Storm, there never was an Article 42 Security Council 
enforcement action. Absent any enforcement actions, UN war-decision law was 
limited to some form of individual or collective self-defense. 

Strict interpretations of self-defense required that "an armed attack occur." 
Such interpretations denied any form of preemptive attack even if aggression was 



O'Brien 183 

a clear and present danger. Moreover, strict interpretations of self-defense 
generally refused to consider low-intensity threats like exported revolution and 
terrorism as "armed attacks." 

"Reasonable" self-defense interpretations claimed a right of preemptive or 
anticipatory self-defense, which was to be judged in the total context of the 
situation, an example being Israel's preemptive attack in the 1967 June War. 
"Reasonable" self-defense interpretations also sought to deal with the prolifera- 
tion of cases of indirect aggression in the form of low-intensity warfare by 
considering such behavior as "armed attacks" warranting self-defense measures 
under Article 51. Thus, the Israelis claimed a right to carry out preventive/attri- 
tion attacks against PLO bases in Arab countries as a reasonable form of 
self-defense against terrorist attacks launched from those countries. The Israelis 
further extended this claim to a self-defense right to respond to attacks on Israeli 
nationals and interests around the world. The United States adopted this concept 
in the 1986 Libyan raid. 

On the whole, UN Security Council practice has reflected strict, literal 
interpretations of war-decision law. It has rejected Israeli claims of self-defense 
against terrorist attacks launched from sanctuary States. The general line of 
Security Council condemnations of Israeli counter-terror actions has been based 
on the view that self-defense measures should be limited to passive, on-the-spot 
"resistance to attack. " Discontinuous responses following terrorist attacks have 
been condemned as "reprisals," No Security Council action condemning the 
U.S. 1986 Libyan raid was possible but, with the exception of the United 
Kingdom, Council members held to the strict version and denied the U.S. claim 
of self-defense. The U.S. action was condemned by the General Assembly. 

I have called the more liberal approach to war-decision law "reasonable." This 
usage is not intended to beg the question in each debate over the legal 
permissibility of recourse to armed force. It is intended to encourage an overall 
evaluation of such recourse in the context of the practical situation rather than 
a black letter law approach purporting to be based on a correct interpretation of 
the language of the Charter. "Reasonable" approaches may be justified because 
they offer practical alternatives to approaches that are unrealistic and unfair. 

The strict UN war-decision law is based on a number of unrealistic assump- 
tions. It assumes a highly effective machinery for peaceful settlement of disputes. 
Our experience since 1945 is that many "disputes" are intractable, based on 
profound differences that have embittered the parties over the years. The Charter 
also assumed a practical monopoly of force in the international community 
sufficient to ensure the peace. The Gulf War, authorized by the Security Council 
as an enforcement action, was the first in forty-six years to provide a remedy to 
a victim of aggression. It is quite unclear whether this enforcement action will 
be the first in a series as a new world order develops or whether it will be the 
last, a unique case. Lacking the protection of UN enforcement actions, victims 



184 Legal & Moral Constraints on Low-Intensity Conflict 

of aggression have been compelled to interpret self-defense broadly and realisti- 
cally. 

UN war-decision law was based on the assumption that war-avoidance was 
overwhelmingly the highest priority and that defense of justice had to be 
subordinated to war-avoidance. As concern for human rights increased — 
together with violations thereof — the UN peace-at-any-cost emphasis was 
rejected by many States and political movements. 

Finally, as demonstrated in the strict interpretations of self-defense, UN 
war-decision law assumed that most conflicts would be interstate conventional 
wars. Of course, most of the wars in the UN era have been low-intensity wars 
of revolution, terrorism, intervention and counterintervention. 

Given the gaps between the assumptions and priorities of the UN Charter and 
the realities of contemporary world politics, it is not surprising that UN 
war-decision law, particularly as strictly and literally interpreted, does not reflect 
the practice and expectations of States and political-military movements. What 
is required is a "reasonable" approach to the understanding of self-defense in a 
world in which there is little prospect for effective collective security, not- 
withstanding the success of Desert Storm. Just war doctrine is ideally suited to 
provide a framework for determining what is "reasonable" in war situations. 

In the contemporary era, war frequendy takes the form of intervention and 
counterintervention. From the time when Emerich de Vattell proclaimed the 
principle of the sovereign equality of States (droit des gens), 1758, the principle of 
non-intervention has been treated as fundamental in international law. Needless 
to say, it has often been violated. But even as colonialism and imperialism declined 
in the latter part of this century, there was widespread — if often hypocritical — in- 
sistence on the necessity and priority of the principle of non-intervention. The 
principle basically prohibits interference by one State with the exercise of sovereign 
powers by another State. In some modem versions, however, the principle is 
expanded to prohibit an unlimited spectrum of forms of influence. 

As with UN war-decision law, interpretations of the principle of non-inter- 
vention range from strict and literal to "reasonable." This discussion will be 
limited to cases of intervention involving armed force. I will therefore eschew 
the arcane issues of political, economic and social intervention, including 
Coca-Cola intervention, designer jeans intervention and CNN intervention. 
Strict opposition to armed intervention is most commonly concerned to prohibit 
external involvement in civil wars. 

Here, in addition to the reliance on the concept of inviolable sovereignty, 
there is insistence on the right of self-determination — by civil strife if necessary — 
without outside interference. 

The problem with the prohibition of intervention in civil war is that, more 
often than not, it is manifestly ignored by States and political-military move- 
ments. Indeed, throughout the Cold War, one could say that a civil war that was 



O'Brien 185 

not the object of multiple, competing interventions must have occurred in a 
place that was of no serious interest to anyone but the indigenous population. 
Moreover, as in UN war-decision law, strict interpretations of the principle of 
non-intervention refused to consider exported revolution and other forms of 
indirect aggression as intervention. Perhaps the outstanding example of this was 
provided by the involvement of the United States in Vietnam, where we 
intervened to counter the indirect revolutionary aggression exported by the 
North. Our more open intervention was roundly condemned, while the trans- 
parently concealed indirect aggression of the North was ignored or condoned. 
Had North Vietnam invaded South Vietnam conventionally as North Korea 
invaded South Korea, presumably even strict constructionists of UN war- 
decision law would have had to accept a U.S. claim of counterintervention as 
collective self-defense against aggression. The mode of indirect aggression — and 
its acceptance — denied the U.S. this clear justification. 

In keeping with their interpretation of the law regulating recourse to armed 
force, those who reject the strict principle of non-intervention undertake to 
judge military intervention in the context of the situation. Here the emphasis is 
on the dynamics of intervention and counterintervention. Competing interven- 
ing powers have often been active in a contested country or area in a number of 
ways not involving use of armed force, such as economic and technical assistance. 
When a revolutionary war heats up, it is necessary to see which intervening 
powers are escalating the conflict. Thus, it is clear that in the period leading to 
full-scale American involvement in the Vietnam War, 1954-1965, the North 
Vietnamese and their Viet Cong allies consistendy escalated the war and increased 
the North Vietnamese role in it, even to the point of infiltrating North 
Vietnamese regular forces into South Vietnam in the fall of 1964. 

Historically, exceptions have been claimed to the principle of non-interven- 
tion. Admittedly these exceptions have been primarily invoked by advanced 
Western, sometimes imperialist, States intervening in less-advanced, weaker 
States. However, these exceptions have also been invoked by Third World States, 
as India did in Sri Lanka. The exceptions claimed have been: 

(1) intervention by treaty right, e.g., U.S. in Panama 

(2) intervention by invitation of incumbent government — usually in the 
form of counterintervention against antecedent intervention in support of 
insurgents 

(3) intervention by a foreign power to protect the lives and property of its 
nationals and other endangered aliens 

(4) humanitarian intervention — intervention to save a people from its own 
government. 18 



186 Legal & Moral Constraints on Low-Intensity Conflict 

The first three exceptions have been invoked a number of times. They are 
controversial in areas where interventions have been deemed self-serving and 
harmful but, in American practice at least, they are considered respectable 
justifications for intervention. However, such interventions must be justified as 
"reasonable" in the context of the situation. 

A right of humanitarian intervention has been supported by some of the most 
eminent international law publicists. However, there is little practical evidence 
that true humanitarian intervention has occurred. Supposed examples such as 
India's intervention in the Bangladesh War of National Liberation are tainted by 
the self-serving interests of the intervening power. 

Just war doctrine can assist in the search for "reasonable" responses to 
intervention taking the form of indirect aggression. Beyond that, just war 
doctrine can help penetrate the veils of "sovereign equality" and "self-determina- 
tion" to determine what courses of action are most likely to lead to justice and 
democracy. Unlike the tendency of international law, just war approaches need 
not always defer to claims of untouchable "sovereignty" and to the primacy of 
"self-determination" if fundamental human rights have been violated on a large 
scale. 

Just War Doctrine Applied - War-decision Law (Jus Ad Bellum) 

I will assume that the usual justification for recourse to armed force will be 
some form of individual or collective self-defense. I will further assume that most 
cases of American recourse to armed force will involve intervention and that the 
level of interaction will be some form of low-intensity conflict. The justification 
will be reasonable counterintervention against antecedent intervention amount- 
ing to either direct or indirect aggression. The task is to bring just war resources 
to the assistance of efforts to frame reasonable claims for self-defense and 
counterintervention. 

Competent Authority, Just war doctrine demands that the commitment of a 
State's armed forces to war be based on whatever authority is necessary in that 
State to take such action. Just war doctrine has not yet really reached consensus 
on the difficult question of establishing competent authority in a revolutionary 
leadership. Since the majority of wars contemplated in this study are revolution- 
ary/counterinsurgency wars, it will be necessary to discuss the requirements for 
competent authority in terms of American law, in terms of the law and politics 
of a counterinsurgent government and in terms of the leadership of a revolution- 
ary force. Of course, the United States may intervene on the side of the insurgents 
in a revolutionary war, as it did in Nicaragua. 

Competent authority for U.S. intervention in revolutionary /counterinsur- 
gency wars has been a controversial subject in modern American history. The 



O'Brien 187 

effort to resolve the controversy in the War Powers Resolution has not been 
very successful. Presidents from Ford to Bush have, in effect, refused in principle 
to accept the War Powers Resolution as binding but have undertaken to 
recognize the role of Congress by informing its leaders of actions covered by the 
Resolution. In the case of Desert Storm, the President, after hesitating and 
claiming he did not need to have Congressional authorization, moved to obtain 
it in the Joint Resolution of January 1 99 1 . This authority, of course, was sought 
for a much greater military venture than involvement in the more typical low 
intensity conflicts. Certainly the failure of President Johnson to obtain a decla- 
ration of war in the Vietnam conflict is widely seen as a mistake, not only on 
legal grounds but in terms of the need to commit the Congress and the nation 
to support of the conflict. 

Just war doctrine would encourage policies of obtaining clear legal and 
political authority and support for commitment of American forces to war, even 
wars of very low intensity. The problem, of course, is that U.S. involvement 
may be very low-profile or even clandestine. It may be awkward or imprac- 
tical to have a major debate followed by Congressional action in order to 
carry out a low-profile intervention in confused situations, such as El Salvador 
and Nicaragua. Nevertheless, ordinary prudence, based on experience with 
mismanaged interventions, suggests that if competent authority is not assured, 
low-intensity conflict operations — often risky at best — will not be sustained and 
successful. 

As remarked, just war doctrine has not been sufficiently developed with 
respect to the issue of competent authority in revolutionary movements. Lacking 
the kind of constitutional and other legal guidelines applicable to an incumbent 
government, revolutionary leaders should demonstrate their popular mandate to 
use armed force against an incumbent regime. This is usually a difficult task. 
Many revolutionary leaders follow the Leninist tradition of the self-appointed 
"vanguard of the proletariat" that allows them to decide when and how a 
revolution should take place and what kind of regime should result if it is 
successful. This may lead to abuse by the vanguard of the proletariat but it must 
be acknowledged that sometimes this is the only way that a needed revolution 
can get off the ground. The populace may be too apathetic or frightened to 
commit to a revolution. In these circumstances it may be difficult for revolu- 
tionary leaders with legitimate causes to demonstrate popular support. On the 
other hand, there have been many cases in which revolutionary leaders terrorized 
and intimidated an unsympathetic populace and obtained its support by coercion. 

If the intervening power is supporting the insurgents it should require 
evidence, not only of the essential justice of the revolutionary cause, but of 
substantial uncoerced popular support for the insurgents. However, if the 
intervention is on the side of an incumbent regime's counterinsurgency efforts, 
it would seem that the issue of competent authority in the insurgent forces is not 



188 Legal & Moral Constraints on Low-Intensity Conflict 

as important as issues of just cause and comparative justice, to be discussed 
presently. Coerced popular support revolutionary activity is a reason to support 
counterinsurgency measures. However, if, as a practical matter, the insurgents 
have sufficient control of the population to carry out their operations, their 
authority may be unjust but it is effective. 

By far the most usual U.S. low-intensity conflict operations have been in 
support of counterinsurgency rather than insurgency. Here, the issue of 
competent authority in the incumbent regime is critical. Intervention by 
invitation requires a government with the legitimacy to invite external 
assistance. This was a major issue in the Vietnam War when critics charged 
that the Saigon regime was illegitimate, corrupt, unrepresentative and an 
American puppet. Indeed, Michael Walzer argued that the very fact that 
South Vietnam needed the United States to survive proved that its govern- 
ment lacked competent authority. 

In dealing with this issue it is necessary to set a very different standard for 
judging competent authority than in the case of a well-established State and its 
government. The typical State that suffers from civil war and external interven- 
tion is already precarious. It is often engaged in "nation building." Nation 
building is difficult enough. Add to it the necessity for a regime in an undeveloped 
State to fight a civil war, usually one that is supported or even controlled by an 
external power, and you have a situation wherein maintenance of competent 
authority is very difficult. 

Accordingly, the competent authority issue in counterinsurgency must be 
analyzed with full recognition of the dilemmas of the incumbent regime. 
Insistence on democratic reforms and the rule of law must be balanced with 
acknowledgment of the security requirements of wartime. In the final analysis, 
judgments must be made, when intervention is contemplated, initiated and 
continued, whether the incumbent government is potentially capable of emerg- 
ing from the war willing and able to develop a democratic, just regime. 

Additionally, just war doctrine would give weight to other criteria such as the 
status of the regime in international law and diplomacy. If, as was the case with 
South Vietnam, the regime governs a State recognized by others, accepted in 
international conferences and generally treated as an international person, the 
presumption will usually be that it has competent authority to invite external 
intervention. This is especially true in cases of counterintervention in response 
to antecedent intervention on behalf of insurgents. 

In considering issues of competent authority it is important to recognize that 
they are not solely matters of morality or law. They are eminently important in 
political-military terms. If military intervention is to be carried out in a revolu- 
tionary war, the credentials of the party to be assisted are obviously critical in 
estimating the probability of success and proportionality of the enterprise. Indeed, 



O'Brien 189 

all of the just war^W ad helium conditions presuppose that the putative just side, 
including all parties to it, has adequate competent authority. 

Just Cause, The broad category of just cause examines the substance of the cause 
and the comparative justice of the adversaries. It also weighs the good that is 
sought against the means required to achieve it and the consequences of using 
force. This calculation of proportionality must be conducted in the light of the 
probability of success after reasonable exhaustion of peaceful remedies. 

The substance of the cause in modern just war doctrine is individual and collective 
self-defense. There is no present consensus in just war doctrine supporting a right 
of military intervention for reasons not covered by self-defense. This leaves a gap 
in the doctrine that needs to be filled. Two kinds of recourses to force can be 
conceived which do not clearly fall into the category of self-defense: humani- 
tarian intervention and just revolution. 

As remarked in the discussion of international war-decision law, an exception 
to the principle of non-intervention is sometimes made for intervention to 
protect nationals abroad in clear and present danger. However, there has thus far 
been little acceptance of an exception of humanitarian intervention in cases 
where a foreign power would intervene to save a people from its own oppressive 
or even genocidal government. This remains an open question in international 
law and just war doctrine could support a trend to recognize humanitarian 
intervention as a legitimate action — provided that it was clearly humanitarian, 
aimed at saving an oppressed population, and not self-serving. 

The substance of the just cause in just revolution is to remove a government 
that is intolerable to its subjects and replace it with one representative of or at 
least acceptable to them. In a broad sense, this just cause is a kind of self-defense 
of the people. In the kind of situation envisaged by advocates of humanitarian 
intervention, resistance to a violently oppressive or genocidal incumbent govern- 
ment may literally be justified as self-defense. However, in most cases of 
revolution the just cause is the removal of a bad, unrepresentative government 
and its replacement with one acceptable to the people. More attention to the 
definition of just cause for revolutionary war is needed because self-defense does 
not really describe the cause in most revolutionary wars. A revolutionary war is 
usually a war of choice. It is not thrust upon the people except in cases where 
oppression has taken a particularly violent form. Accordingly, the necessity for 
violent change must be demonstrated in order to provide a referent for the 
requirement of proportionality of means to ends. Lacking sufficient warrant in 
contemporary just war doctrine for a more elaborate concept of just cause other 
than self-defense, I will simply conclude that there are two categories of just 
cause: self-defense and just revolution. 



190 Legal & Moral Constraints on Low-Intensity Conflict 

Comparative Justice. The concept of comparative justice has already been 
touched upon in the discussion of competent authority. Recourse to military 
intervention in collective self-defense should be justified on grounds that the 
States or regimes defended deserve to be defended. Moreover, it should be clear 
that failure successfully to defend a State or regime will result in an unacceptable 
loss of freedom and human rights because the unjust character of the victor 
ensures that the people it conquers will be oppressed, as were the citizens of the 
Republic of South Vietnam by the Viet Cong and North Vietnamese after the 
South fell. As observed above, evaluation of comparative justice is difficult in 
revolutionary/counterinsurgency wars. Nevertheless, the just cause of self- 
defense or of just revolution must be validated by a finding that the party 
supported has the greater comparative justice. 

The heart of the just war doctrine is the calculus of proportion of means and 
consequences to ends in the light of probability of success. Many situations cry out for 
just intervention or successful revolution but, tragically, hold little probability of 
success. If this is the case, there should be no resort to armed force, no matter 
how just the cause. This general statement should be qualified. There may be 
justification for seemingly hopeless resistance by the immediate victims of 
aggression and oppression, as was the case with Finland in its fight against the 
Soviet Union in 1940. Many revolutionary wars have culminated in victory over 
an oppressive regime despite great odds. However, just war doctrine requires a 
party contemplating what could be called a war of choice to assess the probability 
of success. In the light of this assessment, the probable bad effects of the war are 
balanced against the good of achieving the just cause. The bad effects or cost of 
the war should be proportionate to the good of the just cause. This assessment 
should be made before initiating a just war or revolution. It should then be 
repeated at critical stages in the war. What may have seemed proportionate at 
the outset may come to appear disproportionate, particularly if assessments of the 
probability of success have proved over-optimistic. 

Moreover, the calculation of proportionality is a grand strategic calculation of 
the overall probable consequences of the war. It goes beyond the war-conduct 
level of proportionality required by the principle of military necessity. In classical 
terms, the proportion of war-decision law is at the level of raison d'etat as 
compared with the war-conduct law level of raison de guerre. 

The complexities of the war-decision calculus of proportion in just war 
analyses are well illustrated in the case of the conventional high-intensity Persian 
Gulf War of 1991. U.S. and allied decision-makers had to estimate not only the 
damage and costs of the fighting, but the political, military, economic, social and 
environmental consequences of the war. 

Although often less obvious and dramatic, the myriad of costs and conse- 
quences of low-intensity conflict intervention in civil war may be equally 
complex. For example, any U.S. military intervention in Latin America 



O'Brien 191 

engenders governmental and popular opposition and resentment. Moreover, as 
in the case of the 1989 U.S. intervention in Panama, the aftermath may be 
prolonged political, economic and social dislocation that must be justified as 
proportionate to the just cause of removing a tyrant and his oppressive regime. 

Finally, the just cause may not be pursued by recourse to armed force unless 
there is a reasonable exhaustion of peaceful remedies. The more common formulation 
for this requirement is last resort. I find this formulation too extreme. It tends to 
imply such a reluctance to justify recourse to armed force that last, desperate 
measures may only be taken when it is virtually too late to defend the just cause. 
To refer again to the 1991 Gulf War, last resort might require that we still be 
trying to turn back Saddam Hussein by peaceful means, supplemented by 
coercive sanctions short of major military action. I find that the five months 
between Iraq's aggression and the full-fledged U.S./UN response was marked 
by reasonable exhaustion of peaceful remedies. 

Peaceful and coercive remedies short of full-scale war should be exhausted. 
These remedies have been reasonably exhausted if there is no apparent movement 
by the other side towards an acceptable resolution of the situation caused by its 
unjust actions. This is true whether the adversary is an aggressor State, an 
oppressive regime or a revolutionary movement. 

Right Intention, Right intention requires the just belligerent to limit its goals in 
war to those things necessary for the achievement of the just cause. If the just 
belligerent goes beyond what is necessary for the success of the just cause it risks 
losing its moral status. 

Right intention also requires that the just belligerent repress sentiments of 
hatred and vengeance which are all too common in war, particularly in revolu- 
tionary/counterinsurgency wars. Right intention requires that the just bel- 
ligerent always acknowledge that the ultimate goal of a just war is a just and 
lasting peace. Actions that are likely to frustrate that ultimate goal show a lack of 
right intention. 

Right intention, as a condition of just war, has theological origins. It calls upon 
individuals, political and military decision-makers and whole nations to fight 
morally without tainting their cause with hatred and the desire for vengeance. 
But right intention is also a prudential requirement of international politics. It is 
not good policy to incur unnecessarily the abiding hatred of others and it is good 
policy to seek reconciliation with defeated enemies, as did the U.S. with 
Germany and Japan after World War II. 

At this point the war-decision law of just war doctrine may be compared to 
that of international law. Note that the alternative formulations of the war- 
decision questions in international law are somewhat limited and rather mechani- 
cal. A proposed course of action either fits within a legal category or it does not. 
This is particularly true if strict versions of the law regulating recourse to armed 



192 Legal & Moral Constraints on Low-Intensity Conflict 

force and military intervention are applied. This discussion has undertaken to 
demonstrate that the just war guidelines for war-decision are much more 
comprehensive and realistic. They call for a full analysis of the situation and a 
rigorous decision process in which probable means and consequences are 
balanced against probable outcomes. After making such an analysis, decision- 
makers may be in a position to justify recourse to war as "reasonable," not simply 
as "legal.'* Or, it may appear that what is "legally permissible" is not "reasonable." 

It should be clear that the war-decision law of just war doctrine respects but 
is not intimidated by the international law hierarchy of values dominated by 
"sovereignty," "self-determination," "non-intervention" and "war-avoidance." 
Justice and humanity may in some situations override those values. Injustice and 
inhumanity may flourish behind the shield of "sovereignty" and "non-interven- 
tion." "Self-determination" may mean bloody repression in a Darwinian process. 
Given the destructiveness of virtually all modern forms of war there is good 
reason to give high priority to its avoidance, but that priority is not total and 
perennial. In a world in which established States are breaking up, often with 
chaotic and bloody consequences, there are good reasons to give proper respect 
to sovereignty. However, there are some situations that can only be alleviated 
by some form of armed intervention and coercion and, in such cases, war- 
avoidance must yield to other priorities such as justice and protection of human 
rights. 

To be sure, challenging the priorities of modern international law may be 
risky in a heterogeneous world riven by conflict. There are dangers of self-decep- 
tion and hypocrisy. But, if the just war concept of right intention is taken 
seriously, those who supplement a primitive international law with the resources 
of just war doctrine may be better able to deal with the difficult decision to have 
recourse to armed force. 

Just War Doctrine Applied — War Conduct Law (Jus In Bello) 

Even if the decision-maker has thoroughly considered and satisfied the criteria 
of the war-decision law of just war doctrine and concluded that recourse to arms 
is justified, he must still confront the war-conduct law of just war, which consists 
primarily of the principles of proportion and discrimination. Just war doctrine 
strongly supports the international law condemnation of genocide, which is a 

Oft 

positive law reflection of natural law on which just war is in large measure based. 
Modern just war doctrine tends not to go much beyond these basic principles, 
leaving the detailed normative regulation of war to international war-conduct 
law. 

Proportion. The war-conduct principle of proportion is the heart of the prin- 
ciple of military necessity, recognized in all U.S. military manuals. It requires 



O'Brien 193 

that military actions be proportionate to a legitimate military purpose. Whereas 
the war-decision requirement of proportion is at the grand strategic level ofraison 
d'etat, the war-conduct requirement of proportion is at the strategic and tactical 
levels of military necessity or raison de guerre. 

In positive international law, military necessity is judged entirely in the context 
of the military situation. The greater political-military issues of the war are not 
considered. There is a sharp isolation of war-conduct law from war-decision law. 
In just war doctrine there is a definite relation between the principles of 
proportion in war-decision and war-conduct law. This means that propor- 
tionality is subject to two levels of judgment. First, was the military measure 
proportionate to the military objective? Second, what was the effect of the 
military measure on the ultimate objectives of the war? A single decision as to 
the proportionality of a measure of military necessity may not make much 
difference to the grand strategic picture, but a pattern of measures, an accumula- 
tion of decisions justified by military necessity, may be at odds with the overall 
achievement of the just cause at proportionate cost. 

To be sure, a tactical or even a strategic commander may not be able to judge 
the implications of his actions for the broader outcome of the war. But higher 
political-military decision-makers and commanders should control as far as 
possible the actions of subordinates in the chain-of-command so as to limit 
decisions of military necessity that are counterproductive from the standpoint of 
grand strategy and war-decision law. Although American commanders on the 
ground understandably chafed at the orders that forbade them to go north of the 
Yalu during the Korean War or cross into Cambodia in the Vietnam conflict, 
the need to avoid an open war with communist China was perceived by policy 
makers at the time to be sufficiently important to offset the immediate military 
disadvantages of allowing our enemies these sanctuaries. 

It should be recalled that the normative principle of proportion is closely 
related to the military principle of economy of force. Its application must be 
judged primarily on a military concept of "reasonableness," viz., was the action 
consonant with good military practice? 

Discrimination. The just war principle of discrimination, or noncombatant 
immunity, is understood by the United States to be manifest in the international 
law of war in the form of the principle of humanity. The principle of 
discrimination prohibits direct intentional attacks on noncombatants and civilian 
targets. Most just war analysts consider this principle to be absolute but they are 
able to reconcile it with the indiscriminate propensities of modern war at all levels 
by invoking some version of the principle of double effect. I take a different 
approach. I contend that the principle of discrimination, while extremely 
important is not absolute. Rather, it is a principle that requires that civilian 
damage be proportionate to the military advantage gained by a military measure. 



194 Legal & Moral Constraints on Low-Intensity Conflict 

In modern security jargon, the counterforce value of the action should be 
proportionate to the countervalue costs. 

The principles of proportion and discrimination are difficult to apply at all 
levels of the spectrum of military force. This includes low-intensity conflict, 
particularly in cases of revolutionary/counterinsurgency war. Such wars are often 
fought in areas where the belligerents and civilians are closely intermixed. It 
becomes virtually impossible to fight without causing substantial civilian casual- 
ties and civilian damage. Indeed, it is well known that a standard tactic of 
insurgents is deliberately to involve civilians and civilian targets so that damage 
to them will alienate the population from the counterinsurgent forces and 
government and taint the reputation of intervening allies. 

This fact emphasizes the need to coordinate the strategy and tactics of 
war-fighting with the greater strategic ends of a war. The purely military results 
of counterinsurgent operations, in the form of guerillas killed and bases destroyed, 
must be weighed against what the fighting has done to the attitudes of the civilians 
caught in the middle of it. Insurgents and their supporters may need to perform 
the same calculation. 

In summary, both the positive international law of war and the war-conduct 
law of just war doctrine emphasize the principles of proportion and discrimina- 
tion. The main — and important — difference between them is that the 
international law of war is interpreted and applied only to military contexts 
whereas just war evaluates conduct in grand strategic as well as strategic and 
tactical terms. Just war, then, can complement and supplement the positive 
international war-conduct law and contribute to policies that are more moral 
and more prudential. 

Two particular issues, frequendy debated in discussions of low-intensity 
conflict, have been raised with respect to the international war-conduct law as 
interpreted by international law and by just war doctrine. These are the issues of 
deception and assassination. It must be acknowledged from the outset that neither 
has, to my knowledge, received much attention in the contemporary just war 
literature. 

There is some relevant positive international war-conduct law with respect 
to deception. In the Hague Rules of 1907, Hague Convention IV, "it is especially 
forbidden ... to make improper use of a flag of truce, of the national flag, or of 
the military insignia and uniform of the enemy, as well as the distinctive badges 
of the Geneva Convention." (Art. 23 (f)) The Hague Rules also provide: "Ruses 
of war and the employment of measures necessary for obtaining information 
about the enemy and the country are considered permissible." (Art. 24) 

The meaning of Art. 23 (f) is evident, as indicated by the discussion of its 
provisions in Army FM 27-10. The Army's interpretation of Art. 24 is more 
complex. A distinction is made between "good faith" and "treachery or perfidy." 
It is conceded that the line between the two is "indistinct." FM 27-10 observes 



O'Brien 195 

that, "It would be improper practice to secure advantage of the enemy by 
deliberate lying or misleading conduct which involves a breach of faith, or when 
there is a moral obligation to speak the truth." Examples given are "to feign 
surrender so as to secure an advantage over the opposing belligerent thereby" 
and "to broadcast to the enemy that an armistice had been agreed upon when 
such is not the case," is a "treacherous" act. 

The discussion in FM 27-10 condones all manner of spying and subversion 
of enemy forces. To the two examples of "perfidy" or "treachery" could be 
added such possibilities in low-intensity conflict as luring enemies to a parley 
with assurance of security and then capturing or killing them, or, more broadly, 
promising amnesty to those who have surrendered their arms and then imprison- 
ing or killing them. I would consider FM 27-1 0's treatment of deception in 
war-conduct law to be acceptable to just war doctrine, having noted that the 
subject has apparendy not elicited treatment in the major just war texts. 

Assassination. Assassination is a subject which is frequently discussed in con- 
nection with low-intensity conflict, but there seems to be little consensus about 
it. The subject is to a considerable extent treated as moot because of the U.S. 
executive order prohibiting assassination as an instrument of policy . Nevertheless, 
debate over the moral permissibility of assassination continues. In classic just war 
doctrine and Scholastic political thought the subject is mainly addressed with 
respect to tyrannicide. Much of the treatment of this subject was conditioned by 
the emotions of the religious wars, international and civil. More modern 
discussions of tyrannicide tend to be cautious at best and generally negative. 
Indeed, the whole legacy of Catholic thought with regard to revolution, clearly 
reacting to the French and Bolshevik revolutions, has been to discourage violent 
revolution and seek remedies through legal and non-violent means. Heinrich 
Rommen does not even discuss the possibility of tyrannicide and Johannes 
Messner rules out almost any form except in cases where persons demonstrating 
legitimate authority might dispose of a tyrant who held power illegitimately. 

Admittedly, this meagre literature gives little basis for discussion of the moral 
permissibility of assassination, including assassination of political, military and/or 
revolutionary figures whose status might not be equivalent to that of a ruler 
deemed by some to be tyrannical. Nor does the literature take up the case of a 
potential target for assassination based not so much on the claim that he is a tyrant, 
but on the recognition that he is a key figure in the enemy camp. This would, 
for example, be the case in assassination of revolutionary and/or terrorist leaders 
or drug lords. Such a case occurred when Israeli agents assassinated Khalil El 
Wazir {nom de guerre Abu Jihad) in his home on April 16, 1988. Abu Jihad was a 
top PLO leader who had planned and organized some of the major PLO terrorist 
attacks against Israel. He was in every sense a military commander, a combatant 
in the PLO's war with Israel, which was a war fought largely on the PLO side 



196 Legal & Moral Constraints on Low-Intensity Conflict 

by means of terrorism. Security Council Resolution 611 of April 25, 1988, 
which was made possible by a U.S. abstention, condemned the assassination of 
Abu Jihad, as all previous resolutions had condemned Israeli counterterror 
attacks, except when vetoed by the United States. Resolution 611 is not an 
impressive precedent for dealing with the status of assassination in international 
law. 

A just war perspective on the problem would emphasize the ramifications of 
an assassination in context rather than attempt to establish a universal prescription. 
Just war doctrine would single out targets of assassination who clearly had a 
military or combatant status. A militarily active chief executive or a revolutionary 
or terrorist leader would be distinguished from other high officials who seemed 
to fall more into the category of civilian or non-combatants. Having said this, 
my own approach would be prudential rather than grounded in some basic 
normative principle. It is likely that one assassination would breed a spiral of 
others. This is demonstrated in the numerous instances of gangster wars, as 
described in The Godfather. Vengeful assassination could lead to endlessly recipro- 
cating attacks which, in the end, might not give either side any decisive 
advantage, would lead to chaos and would tend to violate right intention. This 
just war analyst would not encourage assassination as an instrument of policy, 
always recognizing that an important enemy leader who took risks as a combatant, 
including residence inside of military targets, might be killed by counterforce 
military actions. 

Just War Doctrine Applied - Counterterror Operations 

The preceding discussion has covered a wide variety of situations in which 
armed force is used in low-intensity conflict. The main focus, however, has been 
on intervention on one side or another of revolutionary/counterinsurgency war. 
There is another form of low-intensity conflict which is usually part of revolu- 
tionary/counterinsurgency war but which has become so distinctive and 
threatening that it requires independent treatment. This is terrorism. Terrorism 
is often just one of the measures used by insurgents and counterinsurgents. It may 
simply supplement the main efforts of guerrilla and counterguerrilla warfare, as 
it did in Vietnam. Sometimes, as in the case of the IRA, terror is the sole form 
of armed coercion. In the case of the PLO, terror is the main form of armed 
coercion but circumstances sometimes force the PLO to fight in a counterforce 
mode, as it did in Lebanon in 1978 and 1982. 

Whether terrorism is the sole, the principal or a supplemental form of armed 
coercion, it confronts an adversary with very difficult problems. Terrorism turns 
the concept of a counterforce warfare on its head. It is usually not directed at 
military targets. Rather, terrorists deliberately attack non-military targets with 
the intention of creating fear and insecurity in the target population and 



O'Brien 197 

government. All sorts of passive defense measures have been developed to limit 
the depredations of terrorists. However, it is impossible to guard all possible 
targets of terrorists. Ultimately, terrorists must be attacked in their bases and the 
governments and populations that provide those bases must be punished sufficiently 
severely to discourage them from continuing support of or acquiescence in 
terrorist operations. 

Obviously, the country most plagued by terrorism has been Israel. Israel has 
developed, in addition to impressive passive defense arrangements, a counterter- 
rorist strategy of deterrence by example. No simple deterrent posture, such as 
that of a nuclear deterrent, is possible as an answer to terrorism. Rather, by 
preventive/attrition attacks on the sources of terrorist activity, the Israelis seek 
to inflict unacceptable damage on the PLO and on the States and populations 
that provide the sanctuaries and launching pads for terrorist attacks on Israel, on 
Israelis, other Jews and their interests around the world. 

On the whole, this counterterrorist deterrence/defense strategy has been 
successful. It contributed decisively to the expulsion of the PLO from Jordan in 
1970 and to the Syrian decision to bar PLO terrorist operations from being 
launched from Syria. It was less successful when applied to PLO operations 
launched from Lebanon because of the weakness and ultimate collapse of the 
Lebanese government and polity. 

However, Israel has paid a heavy price in terms of United Nations practice 
and world opinion for its counterterror deterrent/ defense strategy. The Security 
Council and most participants in UN debates have consistently condemned 
Israeli counterterror attacks in Egypt, Jordan, Syria and Lebanon. Israel has 
claimed that these attacks are absolutely necessary as self-defense measures against 
a continued pattern of terrorist attacks launched from sanctuary States. But UN 
practice has consistently held to a strict version of war-decision law that denies 
Israel anything but immediate, on-the-spot self-defense. Israel's counterterror 
measures have been condemned as "reprisals" which are distinguished from 
"self-defense." 

There is a complicated debate among publicists about the difference between 
self-defense and reprisals that need not be revisited here. The question is 
whether a "reasonable" interpretation of the right of self-defense includes the 
right to use preventive/attrition attacks against the sources of a continuing pattern 
of terrorist attacks. In the case of the April 15, 1986 U.S. attack on terrorist bases 
in Libya, the answer was that such a continuing pattern of terrorism did require 
a self-defense response in the form of an effective attack on the sources of 
terrorism aimed at U.S. nationals and their interests as well as other targets. 

Note that the American claim of counterterror self-defense is even broader 
than that of Israel. Israel has sustained thousands of terrorist attacks in its own 
territory, as well as suffering from attacks on its nationals and on other Jews and 
their interests worldwide for over forty years. The United States has suffered 



198 Legal & Moral Constraints on Low-Intensity Conflict 

from a relatively small number of terrorist attacks, almost entirely outside of its 
territory, usually in relatively limited forms. Yet the United States claimed a 
self-defense right to make a major air strike against terrorist bases and military 
facilities in Libya. 

What emerges from the Israeli and American experience is two claims: 

(1) a self-defense right to use preventive/deterrence attacks on terrorist 
bases in sanctuary States; 

(2) a self-defense right to protect nationals and their interests abroad by 
counterterrorist attacks on the sources of continuing terrorist activity. 

The Israeli/U.S. stance is definitely a minority position in international law. 
Moreover, because of the disparity in the level of victimization by terrorists, there 
may be a difference between the Israeli position which has been held for decades, 
and the American position which rests almost entirely on the single Libyan case. 
This is an issue that will require more serious thought both in the realms of 
security policy and international law. 

Contributions from just war doctrine may be helpful. I have not struggled 
through all of the arguments about the difference between "self-defense" and 
"reprisals" because they come primarily from publicists writing relatively early 
in the UN era, and they are based on strict interpretation of the war-decision 
law of the Charter, interpretations that have long since ceased to reflect the 

JO 

practice and expectations of States and political movements. The threat of 
terrorism was not contemplated in the United Nations Charter, yet it represents 
far more of a security threat to many States than conventional international war, 
which naturally was foremost in the minds of the framers of the Charter. In these 
circumstances, new thinking about the right of self-defense is necessary. Rather 
than continue the tortured arguments about the meaning of self-defense under 
the Charter, policy makers and publicists would profit from putting prominent 
cases of victimization by terrorism through a just war analysis. 

It should be clear from the general discussion of just war conditions already 
presented that recourse to just war analyses would not necessarily be more or less 
supportive of counterterror self-defense measures. Each case would present its 
own problems of weighing costs and consequences against the desirability of 
attaining the counterterror just cause. This is already reflected in practice. The 
possibility of preventive/attrition counterterror attacks is usually restricted pretty 
much to Libya. This is because Libya is a weak country and its leader, Qadhafi, 
has a reputation for evil and erratic behavior. There is grumbling about terrorist 
support and even promotion in Syria and Iran but little serious consideration of 
attacking sources of terrorism in those countries. This is because they are major 
players in the Middle East and counterterror attacks on their territory probably 



O'Brien 199 

could not be justified after a searching calculation of proportionality of probable 
means and consequences and outcomes. 

I conclude that the contemporary international war-decision law purporting 
to outlaw counterterrorist attacks on terrorist sanctuaries and launching pads is 
bankrupt. It needs to be replaced by a new understanding of self-defense in a 
world in which terrorism is a major security problem. Just war doctrine can be 
useful in developing this more realistic understanding of self-defense. 

Just War Doctrine Applied: The International Drug Trade 

The international drug trade is a great evil in many ways. It supplies millions 
of drug addicts around the world, leading to sickness and death, crime, social 
dislocation and corruption. The international drug trade may very well inflict 
more human suffering than wars and violent revolution. The question is whether 
just war doctrine, developed to deal with recourse to and conduct of armed 
coercion, is relevant to the challenge of suppressing the international drug trade. 

This is an entirely new problem for just war doctrine. There are no precedents 
in the doctrine for taking on a subject of this kind. In approaching it, I suggest 
that it be broken down into two parts. The first is that part of the international 
drug trade that operates primarily as a business, albeit a criminal business. The 
second is that part of the international drug trade that is closely linked to and 
sometimes an instrument of political movements or even established govern- 
ments. 

The second case seems less difficult to approach through just war doctrine. If, 
for example, the United States wants to provide military assistance to the 
government of Peru to subdue the Shining Path movement and, as part of that 
undertaking, participate in attacks on those who produce and export drugs in 
order to support the Shining Path insurgents, just war analysis might well justify 
the anti-drug component in counterinsurgent strategy as part of the overall effort 
to defeat the insurgents. Without going through that analysis I can see, for 
example, that the Shining Path insurgents would fail the test of comparative 
justice. 

To be sure, there would be some serious questions about likely measures such 
as destruction of crops destined for the production of drugs. Consideration would 
have to be given to the economic and social effects of such destruction in areas 
controlled by the Shining Path insurgents. A kind of scorched earth policy might 
not pass the principles of proportion and discrimination. Nevertheless, as long as 
the war on drugs would be part of an overall just counterinsurgency war, it could 
very well receive the support of just war analysts. 

The first and greater part of the international drug trade is more problematic. 
As a business it may exchange services with unjust insurgents and governments, 
but its main function is profit, not the triumph of unjust insurgents and 



200 Legal & Moral Constraints on Low-Intensity Conflict 

governments. In this sense, the commercial international drug trade is far more 
of a threat than is the drug activity employed by particular insurgents or 
governments in an instrumental fashion. This threat requires unprecedented 
international cooperation of a number of kinds. Some of this cooperation takes 
the form of use of the military as well as the police of a number of countries. 

From the standpoint of international law, the key questions concern sover- 
eignty and jurisdiction. In principle, any form of military intervention or 
intervention with police or undercover agents should be on the basis of invitation 
by the territorial sovereign. Suggestions that uninvited intervention could be 
justified on theories of extraterritorial jurisdiction have righdy been viewed 
skeptically. Before a State starts sending uninvited agents to make arrests ("ir- 
regular recovery") or perhaps executes drug dealers in another State, it is well to 
consider the prospect of being visited with similar uninvited agents. 

If just war doctrine is to contribute to the formulation of morally acceptable 
policies for using armed coercion against the international drug trade, it will first 
have to establish that the evil of the drug trade is equivalent to the evil of 
aggression and unjust oppression. War is an extreme remedy and should be 
employed only against the threat of aggressive war or some other comparable 
evil. What would be needed to respond to the challenge of the international drug 
trade would be a full scale just war analysis in which the evil of the trade would 
be established, the relevance and probable utility of military coercion directed 
against it projected, and the probable costs and consequences of employing 
military coercion estimated. This analysis would also have to include a just war 
evaluation of the proportionality of recourse to armed force against the principal 
regions from which the international drug trade operates, as well as an evaluation 
of the effects of such a concentrated effort in one area on the trade in others. 
Thus, it would be necessary to recognize that a massive effort, including use of 
armed coercion, in Latin America might suppress the drug trade there at 
enormous cost only to have the trade spring up immediately in Africa or Asia. 

This has been an exploratory voyage in uncharted waters. It is now time to 
try to develop some charts. The best way to go about this would be for specialists 
to develop case studies of the principal branches of the international drug trade 
and its relation to corrupt governments and revolutionary movements. The 
studies should be presented to just war analysts along with plans for the use of 
force against the trade. The analysts could then evaluate the possible role of armed 
intervention in specific cases on the basis of the just war criteria. 

Conclusions 

This paper has undertaken to evaluate the state of contemporary international 
law regulating recourse to armed force, including armed intervention. It has 
concluded that this body of law is at present inadequate as a normative guide to 



O'Brien 201 

decisions about recourse to armed coercion. While a complete abandonment of 
international war-decision and war-conduct law is not justified, it is clear that 
decision-makers require supplementary or even alternative analytical frameworks 
in order to make good policy decisions. Modern just war doctrine can provide 
such an alternative analytical framework. Depending on the problem and the 
relevant international law, just war doctrine can either complement international 
law or simply replace it as the primary source of normative guidance. 

This paper has shown how systematic application of the just war categories 
can provide a much more comprehensive and realistic basis for decision than 
contemporary international law in dealing with problems of armed intervention 
in revolutionary/counterinsurgency wars and deterrence and defense against 
terrorism. The paper concludes with a preliminary foray into the question of 
using armed coercion to attack the international drug trade. On first impression, 
it appears that it is easier to justify the use of force against the international drug 
trade if the action is part of an overall just intervention in a revolution- 
ary/counterinsurgency war. It is much more difficult, while prescinding the 
international drug trade from its links to corrupt governments and revolutionary 
movements, to think through the possibilities of using armed coercion against 
it. This task may be undertaken in future studies. The best way to approach it 
would be for experts on the international drug trade to provide basic background 
information to just war analysts and pose to them scenarios involving the use of 
armed coercion against specific targets considered critical to the operations of the 
drug trade. Just war analyses would then undertake to perform the fundamental 
function of assessing the means and consequences of recourse to armed coercion 
in context and their proportionality to the good ends sought, in the light of the 
probability of success. 

Notes 

*Dr. William O'Brien is a Professor in the Department of Government at Georgetown University. 

1. See Weinberger's speech to the National Press Club on November 28, 1984, revised in "The Uses of 
Military Power," and Shultz' speech at Yeshiva University on December 9, 1984, revised in "The Ethics of 
Power" in ETHICS AND AMERICAN POWER 1-10 (Lefever ed. 1985). 

2. Department of Defense, Conduct of the Persian Gulf Conflict, An Interim Report, 1-2, 4-4, 12-2-4 (July 
1991). 

3. Professor Johnson and I, as well as other just war scholars such as Ft. J. Bryan Hehir and Fr. John Langan, 
S.J., have lectured on just war at the war colleges and service academies. Students at these institutions read 
contemporary just war books and selected chapters and articles, some of which are reproduced in study materials. 

4. Article 51 provides: 

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 
if an armed attack occurs against a Member of the United Nations, until the Security Council has taken 
the measures necessary to maintain international peace and security. Measures taken by Members in 
the exercise of this right of self-defense shall be immediately reported to the Security Council and shall 
not in any way affect the authority and responsibility of the Security Council under the present Charter 
to take at any time such action as it deems necessary in order to maintain or restore international peace 
and security. 



202 Legal & Moral Constraints on Low-Intensity Conflict 

5. Set, e.g. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 275-78, 367 
(1963); OPPENHEIM, INTERNATIONAL LAW 154-156 (7th ed. 1952); Wright, The Cuban Quarantine, 57 
Am. J. Intl L. 560-65 (1963); Intervention 1956, 51 Am. J. Int'l L. 270 (1957); HENKIN, HOW NATIONS 
BEHAVE 140-46 (2nd ed. 1979). 

6. See, e.g. BROWNLIE, supra n. 5, at 278-9. See also the application of the restrictive view of UN 
war-decision law to Israeli counter-terror operations, summarized in O'BRIEN, LAW AND MORALITY IN 
ISRAEL'S WAR WITH THE PLO 102-12 (1991). 

7. MCDOUGAL & FEUCIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 224-244 (1961), 
BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 53-4, 270-75 (1958); STONE, LEGAL CONTROLS 
OF INTERNATIONAL CONFLICT 281 (2nd ed. 1959); STONE, AGGRESSION AND WORLD ORDER 
92-103 (1958); Higgins, The Legal Limits to the Use of Force by Sovereign States: United Nations Practice, 37 Brit. 
Y. B. of Intl L. 299 (1961); Tucker's new section in KELSEN, PRINCIPLES OF INTERNATIONAL LAW 
(Tucker ed. 2nd ed. 1966); O'Brien, International Law and the Outbreak of War in the Middle East, 1967, 11 
Orbis, 692-723 (1967). 

8. O'BRIEN, n. 6, at 101-7, 112-14. 

9. Id. at 114-17. 

10. Id. at 102-12. 

11. Id. at 102-12. 

12. Id. at 114-17. 

13. See BRIERLY, THE LAW OF NATIONS 36-40, 131-3 (Waldock ed. 6th ed. 1963). 

14. Rosenau, 77ie Concept of Intervention, 22 J. of Intl Aff. 165-76 (1968); Rosenau, Intervention as a Scientific 
Concept and Postscript, in 2 THE VIETNAM WAR IN INTERNATIONAL LAW 979-1015 (1976); Moore, 
Intervention: A Monochromatic Term for a Polychromatic Reality, in 2 THE VIETNAM WAR IN INTERNATIONAL 
LAW 1061-88 (Falk ed. 1976); Vincent, Nonintervention and International Order (1974). 

15. Set, for example, United Nations General Assembly Resolution 2131 (XX), adopted December 21, 
1965: 

1 . No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal 
or external affairs of any other State. Consequently, armed intervention and all other forms of 
interference or attempted threats against the personality of the State or against its political, economic 
and cultural elements, are condemned. 

2. No State may use or encourage the use of economic, or any other type of measures to coerce 
another State in order to obtain from the subordination of the exercise of its sovereign rights or to 
secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or 
tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime 
of another State, or interfere in civil strife in another State. 

See similar language in The Charter of the Organization of American States, Articles 15, 16 and 17, T.I.A.S. 
No. 2361. 

16. HENKIN, HOW NATIONS BEHAVE 16, 115, 126, 134, 176-8, 182, 195, 198, 203-6, 232 (1979); 
Farer, Harnessing Rogue Elephants: a Short Discourse of Intervention in Civil Strife, in 2 THE VIETNAM WAR AND 
INTERNATIONAL LAW 1095-1102 (Falk ed. 1969); Moore, Intervention 1067-9 (1969). 

17. LEWY, AMERICA IN VIETNAM, 15-41 (1978). 

18. On grounds for intervention sec. Moore, 6 A Digest of International Law, 2-11 (1906); THOMAS & 
THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 74-8, 79-97, 
123-41, 215-40 (1956); HENKIN, HOW NATIONS BEHAVE 156-61 (1979). 

19. Ad humanitarian intervention: Lillich, Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. 
Rev. 325-51 (1967); Intervention to Protect Human Rights, 15 McGill Law Journal 205-19 (1969); Humanitarian 
Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives, in LAW AND CIVIL WAR IN THE 
MODERN WORLD 229-561 (Moore ed. 1974); McDougal & Reisman, Rhodesia and the United Nations: The 
Lawfulness of International Concerns, 69 Am. J. Int'l L. 1-9 (1968). 

Contra humanitarian intervention: Brownlie, Humanitarian Intervention, in LAW AND CIVIL WAR IN THE 
MODERN WORLD 218-27 (Moore ed. 1974); Bowett, The Interrelation of Theories of Intervention and 
Self-Defense, in LAW AND CIVIL WAR IN THE MODERN WORLD 38-50 (Moore ed. 1974); Franck & 
Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 62 Am. J. Intl L. 275-305 
(1973). 



O'Brien 203 

20. Compare WALZER, JUST AND UNJUST WARS 101-8 (1977), with KISSINGER, WHITE HOUSE 
YEARS 842-918 (1979); and FRANCK & RODLEY, AFTER BANGLADESH 275-305. 

21. War Powers Resolution Pub. L. No. 93-148, 87 Stat. 555 (1973). 

22. On practice concerning the War Powers Resolution see: FISHER, CONSTITUTIONAL CONFLICTS 
BETWEEN CONGRESS AND THE PRESIDENT 260-80 (3rd ed. 1991); GLENNON, CONSTITUTIONAL 
DIPLOMACY 87-122 (1990); TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN 
THEORY AND PRACTICE 47-91 (1983). 

23. Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1 , 105 Stat, 3 (1991). 

24. SUMMERS, JR., ON STRATEGY 12-13, 17-19 (1982). 

25. WALZER, JUST AND UNJUST WARS 98-101 (1977). 

26. Legality of United States Participation in the Defense of Viet-Nam, Memorandum Of Legal Advisor of 
Department of State (Leonard Meeker), March 4, 1966, Department of State Bulletin 54 (1966) 474. 

27. James T. Johnson suggests that there may be warrant for reviving the classical just war justifications for 
wars to punish wrongdoing and retake something wrongly taken Johnson, supra, at 147. 

This possibility is seldom even mentioned by contemporary just war analysts. Church documents such as 
the 1983 American Catholic Bishops Pastoral, The Challenge of Peace, restrict just cause to self-defense, clearly 
implying self-defense against armed aggression. 

28. Convention on Genocide, U.N. GAOR 3d Sess. (I), Resolutions at 174; U.N. Doc. No. A/810; 
(1949). 

29. Department of the Air Force, International Law - The Conduct of Armed Conflict and Air Operations, AFP 
110-31,1-5-6(1976). 

30. Id. 1-6. 

31. See, e.g. WALZER, JUST AND UNJUST WARS 153, 155 (1977). Walzer's version of the principle of 
double effect is as follows: 

(1) The act is good in itself or at least indifferent, which means for our purposes that it is a legitimate 
act of war. 

(2) The direct effect is morally acceptable — the destruction of military supplies, for example, or 
the killing of enemy soldiers. 

(3) The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil 
effect is not one of his ends, and, aware of the evil involved, he seeks to minimize it, accepting costs 
to himself. 

(4) The good effect is sufficiently good to compensate for allowing the evil effect; it must be 
justifiable under Sidgwick's proportionality rule. 

32. 1 explain the debate on discrimination and my position in O'BRIEN, THE CONDUCT OF JUST AND 
LIMITED WAR 42-55 (1981); LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO 281-4 (1991); 
The Hague Convention Respecting the Laws and Customs of War on Land (1907). 

33. Department of the Army, 77* Law of Land Warfare, FM 27-10 § 52.5, at 23 ( 1956). 

34. Id., at § 49, 50, at 22. 

35. Id, § 50, at 22. 

36. Id, § 49, at 22 

37. ROMMEN, THE STATE IN CATHOLIC THOUGHT 473 (1945); MESSNER, SOCIAL ETHICS 600 
(Doherty trans. 1965). 

38. O'BRIEN, LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO 58, 167-8 (1991). 

39. S/RES/611 (1988). 

40. O'BRIEN, LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO 15-18 (1991). 

41. W. at 18-26. 

42. Id. at 37-41. 

43. Id. at 112-14. 

44. Id. at 102-112. 

45. Id. 

46. See Bowett, Reprisals Involving Recourse to Armed Force, 66 Am. J. Int'l L. 1-36 (1972); Barsotti, Armed 
Reprisals, in THE CURRENT LEGAL REGULATION OF THE USE OF FORCE 79-110 (Cassese ed. 1986); 
O'BRIEN, LAW AND MORALITY IN ISRAEL'S WAR WITH THE PLO, 99-125 (1991). 



204 Legal & Moral Constraints on Low-Intensity Conflict 

47. See Parks, Crossing the Line, 112 Proceedings 964-80 (1986); O'BRIEN, LAW AND MORALITY IN 
ISRAEL'S WAR WITH THE PLO 114-17 (1991). 

48. See, e.g., Bowett, supra note 46, at 29-30; Franck, Who Killed 2 (4)? or Changing Norms Governing the 
Use of Force by States, 64 Am. J. Int'l L. 809-837 (1970); Coll, The Limits of Global Consciousness and Legal 
Absolutism: Protecting International Law from Some of its Best Friends, 27 Haiv. Int'l L.J. 599, 606-20 (1986); Arend, 
International Law and Recourse to Force: A Shift in Paradigms, 27 Stan. J. Int'l L., 1-47 (1991). 



Commentary 

on 

William V. O'Brien's 

"Just War Doctrine's Complementary Role 

in the International Law of War" 



w 



by 
William G. Eckhardt* 



hen I first read Professor O'Brien's work over ten years ago, I immedi- 
ately noted an unusual blending of "just war" and "law." Not only were 
these two disciplines commingled, but Professor O'Brien used unique language 
of his own creation to continually remind the reader of their strange cohabitation. 

In March of 1983 in a symposium on "The Role of Special Operations in US 
Strategy for the 1980s," Professor O'Brien delivered a paper entitled, "Special 
Operations in the 1980s: American Moral, Legal, Political, and Cultural Con- 
straints." For many years, Army War College students in their formal critiques 
have indicated that this paper is the most important article that they read while 
at the Army War College. Its thesis adds practicality to an appropriate integration 
of "just war theory" and "law." 

The thesis of this 1983 paper is central to our discussion. Professor O'Brien 
stressed the linkage between political and cultural constraints and moral and legal 
terminology when he argued: "... it is clear that in a free society such as the 
United States, legal and moral issues, both real and spurious, are central to the 
successful conduct of war." After discussing in the most practical of terms such 
matters as the nature of supported regimes, intervention, and war conduct, he 
went on to conclude: "The best rule simply stated: observe the highest practicable 
standard of just war and international law irrespective of the legal status of 
participants in or victims of the conflict. That is good morality and law, good 
policy and public relations." 

Army War College students restate and build upon these themes. To them, 
the Vietnam War demonstrated that the Clausewitzian center of gravity for a 
democracy is sustaining political support for the difficult decision to use force. 
When the government communicates with its people regarding the use of force, 
it necessarily does so in moral and legal language. Such language and concepts 
come to us from an ancient just war tradition and from a respect for the wisdom 
of the rule of law. Not only do military officers in a democratic polity need to 



206 Legal & Moral Constraints on Low-Intensity Conflict 

understand and comply with legal, moral, and cultural constraints on the use of 
force, they must also internalize this moral and legal language so that they will 
be able to appropriately communicate with the citizens that they serve. Recent 
events have demonstrated in a powerful way the practicality of Professor 
O'Brien's theory. 

Military operations involve planning, training and execution. More recendy, 
they have begun to require justification. This phenomenon became discernible 
in the speech by President Reagan following the Libyan raid. In every major 
operation since, uniformed officers have participated in televised public briefings 
reporting on current military operations. Indeed, our most talented "operators," 
because of their expertise and current knowledge, may well be required to 
become our public spokesmen. This prospect adds direction and urgency in the 
development of curricula for the education of senior officers. It also further 
reinforces Professor O'Brien's practical thesis. 

The education of senior officers requires a theoretical, interdisciplinary ap- 
proach. Stressing fundamental truths, underlining principles, and tracing the 
historic development of ideas are far more important than the teaching of current 
issues or rules. In this interdisciplinary approach, each discipline has its own 
unique contribution. Experience has taught me that an analysis of operational 
problems that combines just war theory, domestic and international law, history 
and management information insures sound public policy. The best example, in 
my judgment, of such writing can be found in Guenter Lewy's Book, America 
in Vietnam, in Chapter 7, "American Military Tactics and The Law of War." 
This chapter is vital reading for military officers who wish to extract professional 
lessons from the Vietnam War. Such a rigorous, interdisciplinary, historical 
analysis seems to be at the heart of Professor O'Brien's plea. 

In the paper before us, Professor O'Brien goes beyond an interdisciplinary 
approach to national security problems by advocating that just war theory 
"complements" international law. He thus seems to be moving beyond comin- 
gling to intermarriage. Historically, he notes that legal positivism displaced just 
war theory in the 19th and early 20th centuries. However, the "collapse of the 
positive international law of war in the total wars of World War I and II, the 
nuclear balance of terror, the multitude of revolutionary /counterinsurgency wars 
complicated by multiple interventions and counterinterventions, and the increase 
in terrorism" has produced a need to "shore up" legal "weak points" with the 
disciplined, rigorous analysis required by the just war tradition. 

Personally, I am both repulsed, attracted, and intrigued by this approach. The 
advantage of law is certainty, and many would argue that nebulous just war theory 
detracts from it. In our secular society, instinct tells us that one should be very 
careful not to let "religious ideas" intrude into the law. Will we selectively use 
just war theory only if the law is not on our side and we need to bolster our 



Eckhardt 207 

argument? Simplistically, self-defense under the UN Charter is our only "just 
cause," so why talk about just war anymore? 

Practical experience attracts me to Professor O'Brien's approach. I am per- 
suaded by his comparison of the strong and weak points of just war tradition and 
international law. Practically, the integration he advocates of just war theory and 
law will occur in war-decision law where international law is at its weakest, or, 
in Professor O'Brien's words — "somewhat limited and rather mechanical." He 
seeks to deal with the difficult decision to use armed force and to help us conduct 
ourselves so as to sustain support for that decision. As noted above, this is the 
Clausewitzian center of gravity in our democracy. His plea is to surmount a 
limited, mechanical, checklist, legalistic approach to decision making with a 
comprehensive, realistic analysis balancing means and consequences against 
probable outcomes. 

How does one practically achieve a more central role for just war tradition in 
shaping government policy on the use of force? Professor O'Brien's approach 
clearly requires more effective communication among the members of the 
Clausewitzian trinity — the people, the military and the government. The distin- 
guished writer on military affairs, Colonel Harry G. Summers, has also noted 
that there is a requirement to engage the national will, to gain public support, 
and to obtain and sustain national and international consensus. 

These necessities seem to have been reflected in then-Secretary of Defense 
Caspar Weinberger's tests for going to war articulated in his November 1984 
National Press Club address — "The Uses of Military Power" — which have 
become known as the Weinberger Doctrine. Articulated at a time when there 
was a general disenchantment with the relevance of international law to foreign 
policy, Secretary Weinberger's text does not mention the United Nations, does 
not mention international law, and does not acknowledge any legal prohibition 
against the non-defensive use of force. When the law was in danger of fracturing 
and was not representing a working international consensus, Secretary Wein- 
berger revived the just war tradition in an attempt to place intellectual "bench 
marks" for public discussion in a search of consensus. Is not this approach similar 
to that proposed by Professor O'Brien? Our countrymen are not unprepared for 
such a debate. In the Gulf War debate, as noted recently by George Weigel in 
his portion ofjust War and the Gulf War. "there has rarely been such a sustained 
(and in many respects, impressive) public grappling with the moral criteria and 
political logic of the just war tradition." In the context of the "revived" respect 
for the United Nations Charter, is such a discussion not the plea of Professor 
O'Brien? The practical importance of our discussion cannot be overstated. 
Professor O'Brien's intermingling of just war tradition and international law is an 
important step toward a more rigorous, interdisciplinary approach to use of force 
issues. 



208 Legal & Moral Constraints on Low-Intensity Conflict 

Notes 

♦Colonel Eckhardt is Director, National Security Legal Studies at the Army War College. 

1. O'Brien, Special Operations in the 1980s: American Moral, Legal, Political, and Cultural Constraints. Special 
Operations in US Strategy 53-84 (Barnett, Tovar, and Shultz, eds. 1984). 

2. Id. at 55-56. 

3. Id. at 71. 

4. See GOLD, EVASIONS: THE AMERICAN WAY OF MILITARY SERVICE 5-6 (1986); Philip Gold 
provides a succinct articulation of the usefulness of the just war tradition. The just war heritage, then, is far 
more than some philosophical tinker toy, designed for the amusement of pedants and obscurantists far removed 
from the battlefield. It is also more than a simple ethical checklist whose mechanical use guarantees either moral 
decision making or prudent policy. Rather, the just war heritage provides a conceptual framework within 
which the individual must evaluate his or her responses to armed conflict, and then communicate those responses 
to the larger society, and to society's agent, the State. And the just war heritage also provides the conceptual 
framework by which society and State must justify any recourse to arms, and the standard by which that recourse 
must be judged. 

5. President's Address to the Nation, United States Air Strike Against Libya, 1986 Pub. Paper 499 (April 
16, 1986); To make a practical teaching point, I often provide my students with a copy of this address and with 
the just war criteria requesting that they outline President Reagan's remarks from a just war point of view. 
This exercise underscores immediately the relevance of the just war study that follows. 

6. LEWY, AMERICA IN VIETNAM 223-270 (1978). 

7. O'Brien, supra at 181. 

8. Id. at 191. 

9. Philip Gold articulates the fallacies in thinking that international law is the answer for determining 
whether a country should go to war. 

. . . reasoning upholds a basic premise of contemporary international law: that nations may resort 
to arms only in individual or collective self-defense, and then only in response to a prior and clearly 
defined act of territorial aggression. In effect, this formulation . . . declares that response to physical 
invasion constitutes the only legitimate casus belli, adding to the implicit corollary that if everyone is 
forbidden to shoot first, no one will shoot at all. 

On the surface, this seems an eminently logical piece of reductionism, and quite in keeping with 
allegedly traditional American values. First shot equals aggression; aggression equates to international 
crime; defense thus automatically acquires both legitimacy and limitation — the limitation of repelling 
the aggressor, but no more. All in all, a tidy little formulation in which the only relevant question 
becomes, 'Who started it?' 

... it ignores the existence of a continuum of conflict, especially the exceedingly complex twentieth 
century continuum. Few modem conflicts ever exhibit such an unambiguous character. 'Who started 
it?' is rarely as simple a question as 'Who fired first?' Further, most contemporary conflicts exhibit a 
'mixed' character: part civil war, part ideological struggle, part international (or proxy) war. In such 
cases, the question of who fired first may prove not only irrelevant, but also impossible to determine. 

See GOLD, EVASION: THE AMERICAN WAY OF MILITARY SERVICE 15-17 (1986). 

10. SUMMERS, JR., ON STRATEGY II: A CRITICAL ANALYSIS OF THE GULF WAR 5-59 (1992); See 
also, SUMMERS, JR., ON STRATEGY: A CRITICAL ANALYSIS OF THE VIETNAM WAR 33-70 (1982). 

11. WEINBERGER, FIGHTING FOR PEACE: SEVEN CRITICAL YEARS IN THE PENTAGON 433-445 
(1990). 

12. ECKHARDT, 'WE THE PEOPLE' GO TO WAR IN THE RECOURSE TO WAR: AN APPRAISAL OF 
THE "WEINBERGER DOCTRINE" 69-74 (Sabrosky and Siaone eds. 1988). 

13. JOHNSON AND WEIGEL, JUST WAR AND THE GULF WAR 48-49 (1991). 



Chapter VIII 



Panel Discussion: The Just War Tradition 



Alberto R. Coll, Chair 



[After introducing the panelists, Prof. Coll yielded the floor to Prof. James Turner 
Johnson, who summarized the key points in his paper "Just War Tradition and 
Low-Intensity Conflict." Prof. Coll then introduced Fr. Francis X. Winters, who 
presented a critique/commentary on Prof. Johnson's paper.] 

FATHER WINTERS: I want to emphasize the critical thrust of my paper, 
which I now feel more vigorously about because I believe that the themes that 
Jim defends in his paper represent a wide spectrum of opinion in the group today. 
In particular, I would like to register a certain vigorous uneasiness with what I 
took this morning to be the belief that political legitimacy is more or less identical 
with democracy. I realize this is a very wide spread opinion in America. I believe, 
although Jim doesn't say this in his paper, that his argument that the United States 
can use low-intensity conflict to remove dictators in other countries rests 
precisely on the supposition that we can judge what is dictatorship, tyranny or 
despotism in another country. That, in turn, rests on the supposition, I believe, 
that legitimacy and democracy are identical. My own reading of the just war 
tradition, which is not nearly so professionally profound as Jim's, is that this is 
certainly not true, at least at the highpoints of the just war tradition. It may be 
true of 98 percent of the authors who can be considered to be just war theorists. 
I am wholly convinced that three of the greatest authors, St. Thomas Aquinas 
and his disciple, John of Paris in the thirteenth and early fourteenth centuries 
and Vitoria in the sixteenth century, clearly by the whole weight of their genius, 
resist the notion that any particular form of government is universally valid. 
About that I will say one thing. This historical moment, in which St. Thomas 
Aquinas taught, was the time when King Louis of France was resisting the 
pretensions of the Holy Roman Emperor to give and enforce the law in France. 
St. Thomas agreed with the King that virtue is, in fact, a function of culture. As 
St. Thomas said and later, curiously, Jefferson said in our own culture, what is 
virtuous in one State may be vicious in another, because politics is of the stuff of 
culture. If you concede that cultures are irreducible, then politics will, some say, 
be irreducible. Therefore, at the points in the tradition represented by St. Thomas 
Aquinas and his disciple John of Paris, and by Vitoria, who opposed the 



210 Legal & Moral Constraints on Low-Intensity Conflict 

dominion of Spain over its American colonies, it is clearly the case that just war 
doctrine insists that political legitimacy be culture specific. There are, of course, 
some things that would be unjust anywhere, but for the most part, political 
legitimacy is culture specific and, therefore, it is not possible to claim the existence 
of a universal standard of legitimacy that must be met before a regime is entitled 
to international respect for its sovereignty. I believe this is the position of these 
authors. 

I would like to mention just two cases, with one of which I am very familiar. We 
all know about the other through reading the newspapers. The first is Operation 
Just Cause, which I think a lot of people here have problems with for one reason 
or another. I happened to be in Panama lecturing to the Southern Command 
leadership a little bit before the operation, actually, in 1986, so I have some feel for 
the area. Naturally, I followed the invasion with a certain amount of interest. Even 
after the event, I had some students who were Panamanians, so I kept asking them 
what was going on. They brought me a lot of papers presented in the Congress to 
the House Subcommittee on Western Hemisphere Affairs and I quote in my paper 
from a statement by Eva Loser who works for CSIS in Washington. She said that 
in the Panamanian press, there is general agreement that General Noriega had been 
replaced by general discontent. Just Cause looked like good conduct and as if it was 
effective, but now what's going on in Panama? Nothing is going on in Panama. I 
mention that because it is entirely possible that reform intervention, say intervention 
against dictators which, from our point of view looks quite sound, may not work 
out as well as we might expect. I would argue that's wholly explicable philosophi- 
cally, and wholly predictable historically. 

Let me mention the other case, which I am studying currendy for a book. This 
is the case of the Kennedy Administration's removal of the government of South 
Vietnam in 1963. 1 have become very interested in this question, and have, in fact, 
interviewed all the survivors of the Kennedy Administration, with the exception of 
former Secretary of Defense Robert McNamara who didn't answer his mail and 
former Special Counsel to the President Theodore Sorensen who said no. 

The United States' removal of the President of South Vietnam in 1963, was, 
and I have this on very good authority, micromanaged by President Kennedy 
from the beginning to the end. It was a classic case of reform intervention. Ngo 
Dinh Diem was removed precisely because he was a dictator. The Kennedy 
Administration was wholly persuaded that if it could only remove Diem, 
democracy would flourish. We moved, therefore, between August 24th when 
the first cable went out directing the embassy in Saigon to run a coup, and 
November 1st when it actually occurred. The United States Government had 
exceptionally comprehensive information, because Kennedy was himself deter- 
mined to have the facts. Even in the face of very clear warnings that after Diem 
there would be chaos, we set out to reform the government of South Vietnam 
by decapitating it. What happened? Ngo Dinh Diem, as was predicted, was 






Panel Discussion 21 1 

replaced by a military junta which lasted 89 days. They were then replaced by 
another military junta that lasted about 18 months, which was replaced by Thieu 
and Ky. Reform never appeared. 

Now, it is entirely possible that because I have been preoccupied with this 
fateful choice in American and Vietnamese history, I feel overly strong about the 
principle of sovereignty. I concede that. All I will say is that in this pivotal episode, 
the connection between the assumption that Americans know what is legitimate 
in another country and the move to reform the situation by decapitating the 
government, from which chaos ensued, may not be coincidental. If there is such 
a connection, then I think we should pause and ask ourselves whether we 
shouldn't take more seriously this old-fashioned principle of sovereignty, which 
insists that political legitimacy is culture specific, and therefore should not be 
judged from the outside by someone who simply happens to be powerful enough 
to overthrow a government. 

PROF. COLL: Thank you, Father Winters. 

Let me summarize some of the key points made by both panelists before we 
open up the floor. 

Professor Johnson argues that the just war tradition is best seen as a historically 
received way of thinking about the problem of war. He views it as a tradition 
that is very closely connected to what Professor Terry Nardin would call 
"common morality," in the sense that it draws for its sustenance on attitudes 
among the general population as well as religion, international law, and military 
manuals. And, he sees these sources functioning as "carriers" that advance the 
tradition with varying degrees of vigor during successive stages of its develop- 
ment. 

Professor Johnson cites the Shultz- Weinberger debate in the mid-1980s as an 
example of the liveliness and relevance of just war tradition to current policy 
deliberations. At this point, I must inject a personal observation, which is that in 
my years of teaching international law, I have found a degree of reluctance on 
the part of international lawyers to take seriously just war thinking. This 
reluctance stems from a sense that the tradition stands for a way of thinking that 
is no longer relevant or practical, that just war doctrine is caught in the musty 
cobwebs of medieval theology. But as Jim Johnson very usefully reminds us, the 
Shultz- Weinberger debate illustrates that just war tradition is alive because the 
questions raised by its criteria are very similar to the kinds of questions that at 
least most of us in the West ask whenever we engage in moral reasoning about 
war. Even when just war criteria are not formally invoked, the questions that are 
raised, the standards alluded to by both Shultz and Weinberger, correspond to 
those addressed by the just war tradition itself. It is also understandable that there 
will be differences between some of the emphases laid down by the tradition in 
its classical formulations, and some of its contemporary applications. This is a 



212 Legal & Moral Constraints on Low-Intensity Conflict 

natural product of the tradition's ability to absorb contemporary moral concerns 
and modes of argumentation. As an example of this, Professor Johnson cites 
among others, the question of defense. In his view, the just war tradition includes 
not only self-defense, but also very importandy, the notion of recovering 
something wrongly taken, and the principle of punishing the wrongdoer. I find 
that an important and very interesting observation and on a practical level, I 
would like to point to its relevance in justifying counter-terrorist policy. 

When the United States carried out its military raid against Libya in 1986, it 
seemed to me that we went through tremendous contortions intellectually to 
justify it solely as a self-defense operation. And, whenever the question was raised 
as to whether this was only a self-defense operation, our international lawyers 
were most insistent that self-defense was a complete account of our motivations 
for the raid. Meanwhile, if you had asked most Americans what the goals of the 
operation were, they would have included self-defense and implicitly deterrence, 
but also they would have referred to punishment of wrongdoing. They would 
have said, "we bombed Qadhafi not only because we need to defend ourselves 
against him, and not only because we want to deter him from future acts, but 
also because it is morally sensible and legally reasonable to punish him for what 
he has done." The debate, of course, will continue for quite some time to center 
on the issue of how broadly we define the concept of defense. 

Professor Johnson also focused on the question of moral authority and 
sovereignty. He was careful to define sovereignty in the light of the notion of 
right authority. Only those civil authorities with no formal superior could 
authorize the use of force to protect the community from domestic and foreign 
threats, to defend it from lawlessness and to promote the values of good social 
order. And the limits on that use of force sanctioned under right authority, were 
to be, as he puts it, practical politics and the power of others. From that, Professor 
Johnson deduces that in responding to low-intensity conflict, the authority to 
use force would extend even across transnational borders, and that in a sense, the 
same standards that apply to the use of force in general, should apply to resort to 
low-intensity conflict. 

Professor Johnson discussed the traditional criteria for a just war. These 
requirements include the existence of a just cause, the presence of right intention 
and a condition of last resort. I think he quite properly avoided defining this latter 
category as the satisfaction of a formal requirement that all available remedies 
have in fact been exhausted. He opted instead for an assessment that there is 
nothing more to be gained from waiting. This was particularly relevant during 
the Gulf War. Terry Nardin and I have had many debates on this question. He 
and some of my colleagues on the Carnegie Council have argued that we should 
have given sanctions more time. My view, and I suspect Jim Johnson's, though 
if he disagrees, he may correct me on the spot, was that we really were not 
required by just war tradition or by moral reasoning, or moral reasonableness, to 



Panel Discussion 213 

wait until we had actually exhausted all of the remedies available. All that was 
necessary was a reasonable assessment of whether we, indeed, were in a situation 
of last resort; whether if we were to wait, Saddam Hussein would change his 
mind and withdraw from Kuwait. 

Other criteria laid down by the just war tradition included the end of a 
peace that would promote social order, and the idea that force be used in 
accordance with the jus in bello and the canons of discrimination and propor- 
tionality. 

There's another very important point to be made here because traditionally, 
people who hear the words "just war" often equate it with a notion of wars of 
religious fanaticism. Jim Johnson reminds us that even if a use of force is justified 
according to the jus ad bellum, in order for it to remain justified, the action must 
still observe the principles of discrimination and proportionality. Otherwise, what 
initially began as a justified use of force, can become an unjust war. 

Professor Johnson raises the question of whether the work of international 
organizations to which States now give some authority to use force, places some 
limits on unilateralism. He suggests that indeed it does, but that these organiza- 
tions also give States considerable discretion for intervention in two situations: 
when there is a specific security threat to the community or a member of it, and 
when extreme human rights violations have occurred. Just war tradition, he 
admits, is broader than international law in its allowance of the use of force. And 
in his view, international law, as was suggested by some of the earlier papers and 
comments, has become overly restrictive; a question that we need to debate. 

On the practical question of the targeting of individuals, Professor Johnson 
reminded us that even though decapitation of individual terrorist leaders or heads 
of State involved in particular crimes of aggression, seems to accord with the 
logic of discrimination and proportionality, it also carries several important costs. 
It often involves the violation of international and even domestic law. It deprives 
the victim of the due process of law. It also runs counter to a strong tradition 
against regicide which has deep foundations in principles of social order. It looks 
too much like murder. It often involves means that are mala in se, and as he 
reminds us, war is not murder. 

Father Winters, in his commentary, is extremely uneasy with what he sees to 
be one of the premises of Jim Johnson's paper, which is equating political 
legitimacy with democracy. But I think at the root of this unease there is an even 
more radical critique which Father Winters poses for Jim Johnson's thesis and 
for some of us here in this room. That is, as he puts it in rather blunt language, 
justice is culture specific. Justice is not a universal norm. There may be some 
general notions of justice, but at the policy level I hear him arguing that justice 
is very much circumstance dependent. That poses some very interesting questions 
across not only policy, but philosophical lines. 



214 Legal & Moral Constraints on Low-Intensity Conflict 

Father Winters discusses our interventions in Panama and South Vietnam 
to argue that United States' efforts to remake other regimes that fall short of 
our values, are dangerous, often downright counterproductive, and suggest a 
great degree of arrogance on our part. In some ways along the same lines that 
Terry Nardin earlier made a plea for international law, Father Winters makes 
a plea for that now somewhat discredited, old fashioned principle of sover- 
eignty. He suggests that there is a core value to that principle of sovereignty, 
which is the protection and embodiment of the idea that justice ultimately is 
culture specific. By recognizing that value, sovereignty provides a link to 
reality which policymakers badly need. The weight given to sovereignty by 
international law, in this view, encourages a morally desirable degree of social 
order that is violated when we attempt to remake the world in accordance with 
western cultural ideals that we suppose to be universal. 

There is a wealth of key issues that we need to raise here and I would like to 
open the floor now. 

PROF. COLL: Professor Sarkesian. 

PROF. SARKESIAN: I'm grappling here with the meaning of low-intensity 
or unconventional conflict. Does it include everything except conventional war? 
If it does, we need to flesh it out more fully to determine how international law 
would apply to it. I just wonder if international law is comprehensive enough to 
cover all aspects of every kind of war. I'm not sure that it is. Although I'm not 
an expert in international law, I suspect that it is still growing and has many gaps 
or areas that have been left unclear. I'm just wondering if some of these ill defined 
areas coincide with the critical elements of uncoventional conflict, that is, 
revolution, counterrevolution, and terrorism. This raises the possibility that 
attempts to adjudicate the conduct of low-intensity conflict would involve a legal 
free-for-all in contrast to the well established law of conventional war. 

My second concern is whether just war doctrine is not driven by what we 
normally consider now as conventional war issues. That is, war between 
recognized political entities. I just wonder how relevant such a doctrine can be 
to revolution, counterrevolution and terrorism. It seems to me that's a problem 
that some of our own military had in looking at unconventional conflict through 
a conventional lens. 

As a final aside, I'd like to observe that democracies tend to evolve chaotically 
so we need to be careful about looking for any one historical pattern in an attempt 
to make judgements about political legitimacy. But to recap, the issues I would 
really like to be addressed are the meaning of low-intensity conflict, whether 
international law is comprehensive enough to cover all of its manifestations, and 
the relevance of just war doctrine to unconventional conflict. 



Panel Discussion 21 5 

PROF. JOHNSON: Let me quote the 1985 definition of low-intensity 
conflict from my paper: 

Low-intensity conflict is a limited political and military struggle for achieving political, 
social, economic or psychological objectives. It is often protracted and ranges from 
diplomatic, economic, and psychosocial pressures through terrorism and insurgency. 
Low-intensity conflict is generally confined to a geographic area and is often 
characterized by constraints on the weaponry, tactics and the level of violence. 

My position in the paper is that we're not talking about a phenomenon. We're 
talking about a range of phenomena and it is simply an accident of history that 
we are now confronted with it. These phenomena don't fit very well in the 
traditional categories as we have become accustomed to using them. So we have 
to ask ourselves how to apply those categories, or indeed, what other categories 
might apply. 

On the question of whether international law is well-equipped to deal with 
low-intensity conflict, I have given a somewhat wooden picture of international 
law in my paper and, in fact, I personally tend to be much more optimistic about 
its flexibility, but international lawyers differ on this point. 

As for the relevance of just war tradition to low-intensity conflict, by referring 
back to the "peace of God" movement and the original impetus that gave birth 
to the idea of right authority, I was trying to show that the genesis of the tradition 
was not concerned with fighting between sovereigns. The tradition really began 
to coalesce around the social problems caused by various disorderly elements that 
threatened medieval society. And so, I do think that there is something to be 
learned from reflecting on this tradition for low-intensity conflict. I think that 
the sorts of phenomena that we think of today as involving the potential for 
low-intensity conflict are, in fact, very much the same sorts of experiences that 
in the Middles Ages gave rise to what was then a rather inchoate set of traditions, 
which was crystallized by reflection in a coherent doctrine on just war. 

FR. WINTERS: If I could respond to the second of those questions, whether 
just war tradition is relevant to revolutionary insurgency. 

I think it's quite striking actually. I mean, before there was a fully developed 
theory of sovereignty in the just war tradition with St. Thomas Aquinas, there 
was a 500 year old tradition about revolution. The tradition about revolution 
within what then became the just war tradition originates at least as early as the 
eighth century. Now, that's important to the present discussion because many 
American debates about reform in other countries assume that we will have to 
provide the impetus for it. The just war tradition insists that reform is an 
indigenous capacity and an indigenous obligation. Therefore, the fact that we 
know there should be reform somewhere doesn't mean that America should 



216 Legal & Moral Constraints on Low-Intensity Conflict 

intervene to bring it about. It means that the first burden is on the people in the 
country to decide what's tyranny and to do something about it. 

My own view is that much American discussion of reform intervention has a 
premise that is slightly condescending to other nations. Namely, they're not 
bright enough to know they're being tyrannized or if they're bright enough, 
they're not courageous enough to do something about it. So I think if the just 
war tradition has a relevance to revolution, it's that revolution is a universal right, 
and therefore, we shouldn't be inclined to leap into it immediately. We should 
allow other peoples to deal with tyranny as they see fit. 

I just want to say one more thing. I also think that the just war tradition does 
not preclude us from assisting another government facing a revolution. I don't 
think it is explicit in the tradition anywhere but I think the tradition is wholly 
open to it. I think that the idea of being allowed to assist governments against 
insurrection is more a question of international law, but I think the just war 
tradition is at least open to it. I think my first point is more important though. 

PROF. FARER: Three points. First on the question of whether international 
law covers low-intensity conflict and its range of phenomena. If law were only 
a collection of rules, it would make it easier to answer. If you see law as consisting 
of three kinds of materials (rules, principles and policies), then the situation is 
different. Even if a specific rule doesn't cover a problem, the broad principles do 
cover it, and the policies that infuse the rules and principles, certainly cover the 
issue. This makes it perhaps easier for reasonable people to disagree as to exactly 
what the appropriate legal result is of a case, but it doesn't leave gaps in the legal 
structure as such. 

The second point has to do with what seems to have become the principal issue 
with sovereignty, which is low-intensity conflict and democracy. I'm not entirely 
sure how it relates to the general discussion that we're having. If it is a question of 
whether we should use low-intensity conflict strategies to overthrow tyrants, we 
can focus on that issue. Or we can decide if it is a question as to whether we 
overthrow tyrants by low-intensity tactics or high-intensity tactics, and that's another 
issue to be considered. I don't think that distinction was made by either speaker. 

FR. WINTERS: Could I just answer that one. I meant, my response to Jim is 
that he does, as far as I can tell from the text, say that we should be allowed to 
turn to low-intenstiy conflict to remove dictators. 

PROF. JOHNSON: Yes, that is my position. 

FR. WINTERS: Now, to my mind that supposes, first of all, that you have a 
just claim for removing a dictator. This talk about doing it by low-intensity 



Panel Discussion 217 

conflict can't be resolved until you decide whether you have a right to do that. 
My claim is that there is no such right. 

PROF. FARER: By low-intensity, meaning — 

FR. WINTERS: By any meaning. It's wholly irrelevant unless you have a right 
to engage in reform intervention and I don't think there's such a right, or, if 
there is such a right, it's not in the just war tradition. At least, it's not in the parts 
of the just war tradition with which I'm familiar. 

PROF. JOHNSON: What I actually said was this: first, I explicitly did not say 
that the only good governments are democratic governments. I think that by 
and large you find more of them that are, but generally I did not say that. What 
I said was you find good governments that satisfy the proper ends of politics, in 
a variety of forms, and you have to take that seriously. This means that you can 
actually conceive of a good government that is run by someone we might 
consider a very strong monarch. I'm not sure I'd go so far as to say a good 
government could ever be run by a dictator because the term "dictator" means 
something different to me. 

Secondly, I said that in order for there to be justification of the use of force, 
there must have occurred an egregious violation or threat to the rights or security 
of people. That is the criterion I would use in making the decision about whether 
to move against a particular dictator or not. I do think that there is a right to do 
that. I don't think that we can use the argument about different conceptions of 
rights, justice and legitimacy to argue against the fact that there are a lot of things 
that you can get a very broad international consensus on. So, what I did was to 
say that where you've got that consensus and where you have some clearly 
egregious violations then there is justification. 

PROF. COLL: But would you apply that to violations against peoples within 
sovereign boundaries? 

PROF. JOHNSON: Yes. 

PROF. COLL: Whereas Father Winters keeps insisting that sovereign borders 
should be inviolate. 

FR. WINTERS: Yes, on the whole. I would say I'm very close to the position, 
I think it's Michael Walzer's, that borders are not absolute in every case. Genocide 
is certainly a case where sovereignty is being subverted, but I think there is, in 
the literature, a wide spectrum of views about when borders can legitimately be 
crossed to arrest human rights violations. I think the word "egregious" is 



218 Legal & Moral Constraints on Low-Intensity Conflict 

insufficiently clear and means different things to different people. Since I believe 
that borders have an extraordinarily important cultural and political significance, 
a powerful nation like the United States should be very clear in principle about 
what it means by an egregious violation of human rights. If we don't have such 
an understanding, our policy can mean anything to anybody. It can mean the 
fact that if you don't approve of this man who's apparently been dealing in drugs, 
it permits you to blow him away. I think that lack of clarity presents an enormous 
temptation for a nation with the power that we have. Intellectual clarity in 
advance of the crisis is indispensable as a protection for us and for them. 

PROF. FARER: Could I just press both Jim and Francis on this one important 
point? You James, imagine that there could be reasonably attractive regimes that 
aren't pluralistic. I think you, Francis, say, well, perhaps there can be at least 
acceptable regimes that aren't pluralistic, they just have another cultural tradition. I 
would ask you both whether you think that's true today as opposed to for all of 
human history. Isn't it possible to argue that as a consequence of the penetration of 
market forces of capitalism into all corners of the globe and the liberal culture that 
goes with it, but doesn't always produce liberal governments, that the traditional 
sources of legitimacy which enable rulers to govern without extreme repression, 
have disintegrated? The traditional institutions which buffered populations against 
monarchs have also tended to disintegrate and, therefore, is it not probable that 
human rights, even the core rights plus pluralistic systems, are really the only 
alternative today for ruling with only moderate degrees of repression? 

FR. WINTERS: I wouldn't think that. Take for example the claim that the 
present Chinese regime is unacceptable to us; that if it were smaller and less 
powerful, we would do something to change it. I think that's assuming a level 
of understanding on our part which is arrogant, in Alberto's phrase, because I 
don't think that it's changed that much. 

PROF. JOHNSON: But that's very different from saying that it is a good 
regime. I should say Tom, you found me out. Because I do think of these possible 
good regimes mainly in historical terms. 

PROF. COLL: George Weigel. 

DR. WEIGEL: Frank, could I ask you to sharpen this just a bit. It seems to me 
you're right to warn us of the limits of American understanding and therefore, 
enjoin caution in recreating other peoples' societies. If I may say, I think the 
point would be even more effectively made if you counted the limited examples 
where we have done a pretty good job of recreation. Mainly post-war Germany 
and Japan. 



Panel Discussion 21 9 
FR. WINTERS: That's another story. 

JUDGE SOFAER: They are clearly success stories. I think it is obviously 
true that cultural complexity is written in the descriptive history. Some of us 
would say by the author of history, beyond the history. But cultural com- 
plexity does not absolve us from making some important discriminating 
judgements at certain points. For example, Saddam Hussein may believe, for 
a combination of ideological, religious and practical reasons, that he has an 
obligation to acquire nuclear weapons. This may stem, not from lunacy, but 
from his own sense of justice and the obligations of leadership. It does not 
seem to me necessary to maintain that we have any obligation to accept his 
idiosyncratic view of justice at all. Moreover, I would say that in the case of 
Saddam Hussein in particular, his signature of the U.N. cease-fire agreement 
and subsequent violation of it suggest that he has made the decision to play 
ball on our legal and moral court. The problems of non-proliferation and its 
relationship to just war tradition is clearly going to be on the agenda sometime 
in the near future. 

FR. WINTERS: About Saddam Hussein, I concede that he has signed, for 
whatever reason. I must say it's one of the most baffling things about Saddam 
Hussein, that is why he signed this treaty. But at any rate, he signed the treaty 
agreeing that these things would be dismantled. I tried to get off the theoretical 
hook by saying, Saddam Hussein agreed to this. We can do what has to be done 
militarily to make him live up to that. 

What would we have done if we had found out without going to war with 
him that he was on the brink of acquiring nuclear weapons? I think it's an 
extraordinarily complex question because to do something about it involves use 
of a double standard, and I try to maintain in the paper that there's nothing in 
the just war tradition which would justify using a double standard in that case. 
Nevertheless, I think it would be wise for us to do something about it. How you 
would make a moral case for it, I would be the last person to know. 

JUDGE SOFAER: The double standard being what, that we have nuclear 
weapons — 

FR. WINTERS: We have nuclear weapons, they do not. I would have to go 
slowly with that. I mean, Israel has them and we're denying them to Iraq. 

JUDGE SOFAER: You would surely admit that no sane person operating 
through the just war tradition would say that we have any moral justification to 
do something about the British nuclear submarine force. 



220 Legal & Moral Constraints on Low-Intensity Conflict 
FR. WINTER: No. I agree. I agree. 

JUDGE SOFAER: Then can the only reason for that be that we also have 
nuclear weapons? We intuitively, morally — 

FR. WINTERS: I understand, but that intuitive, moral sense gets us off the 
hook. I think if you want to look at this question from the point of view of 
philosophy, we have to look at the cases of Israel and Iraq. Now, I realize this 
may be extremely contentious, I'm sure it's contentious, but that's what I get 
paid for. I have no confidence, none whatsoever, that Israel will never use a 
nuclear weapon. I would have even less confidence that Saddam Hussein will not 
use his, but if I were morally certain that I could move against Saddam Hussein, I 
would feel compelled morally to say the same thing about Israel, which I'm not 
willing to say, and I don't know how to deal with that theoretically. Happily, it's 
not my field. But certainly as an intellectual conundrum, it's very substantial. 

PROF. COLL: Professor Wakin. 

PROF. WAKIN: Could I pursue this business of cultural specific justice just 
a little bit more? I'm just a little puzzled. When you say justice would demand 
that we leave Iraq alone if we leave Israel alone, from what culture are you 
speaking? You see the issue that I see? In order for you to say that, you must 
have in mind some sense of justice that goes beyond the culturally specific sense 
of justice. That's number one. 

FR. WINTERS: What I'm thinking of is a very primitive sense of justice. 
That is to say, one thinks it unjust and one is fairly confident. If one tracks my 
publication record, one can see that this is not a new opinion for me. One will 
see a consistent and unambiguous expression of the position that any military 
use of nuclear weapons is wholly unacceptable morally. I was in that position 
when America was the only nuclear power and I still feel exactly the same way. 
Perhaps more strongly about Iraq and Israel. So I would say there is no moral 
justification for a policy that contemplates the use of nuclear weapons in military 
fashion for any nation and I think that that is one of the very few things that 
could be acknowledged by any culture. 

PROF. WAKIN: That's a universal judgement, that's not culture specific. 

FR. WINTERS: Yes. There are some universal judgements. 

PROF. WAKIN: I would like to ask about some others. 



Panel Discussion 221 

FR. WINTERS: Okay. 

PROF. WAKIN: For example, genocide. 

FR. WINTERS: Same. 

PROF. WAKIN: Slavery. 

FR. WINTERS: It is not possible to say that a political form, as such, is 
universal. Now, when you talk about slavery, for, example, which is a very hard 
case, you're not simply talking about a political society. You're talking about the 
subjugation of one block of people to another. That's not only a question of 
politics. So when I talk about politics being culturally specific, I'm not talking 
about economics, which is the fundamental thing at work in slavery, I assume. 
I'm talking about ways of organizing society, the political interactions among 
people within boundaries. In that realm, I think that the possibilities of human 
invention are endless. I guess, I never thought about it this way but I think what 
I'm protesting against when we insist on this equation between democracy and 
legitimacy, is that it is fundamentally opposed to the notion of human liberty. I 
don't think it can be all poured into one form. 

PROF. COLL: Professor Reisman. 

PROF. REISMAN: This morning Fernando Teson expressed a view, I think, 
that was acceptable to everyone here. And that was that the notion of the use of 
force by a strong state like the United States simply to further national interests, 
this atomistic notion that it's good for us, therefore it's good, was unacceptable. 
This is known as normative realism. To avoid this stance, you must, in effect, 
have criteria which you believe transcend your own culture when you make 
judgements about what goes on in another culture, in another State. You need 
that. We've all tried to attach ourselves to this notion of universal norms. 

Father Winters says that such standards are largely chimerical and that justice 
is situation specific. I'm quite sure that that was a correct statement when Aristotle 
said it, and I'm quite sure it was a correct statement when the missionaries came 
to the New World and undertook to win the souls of its indigenous population. 
I agree with Tom Farer, that the attempt to postulate universal norms today is 
not a manifestation of imperial arrogance. I don't think Father Winters is correct 
in saying that these matters are culture specific. I think the emergence of a global 
culture involves a vast process of homogenization. A common set of values is 
being imposed around the globe from the top down, admittedly very often against 
the will of peoples attached to their own traditions. I think that many of those 
values are expressed in a few documents, most of which unquestionably were 



222 Legal & Moral Constraints on Low-Intensity Conflict 

authored by Westerners. Some work. Some documents very probably were 
initiated by controlling factions in developing countries who wished to circum- 
vent international pressures of domestic reform. 

I submit to you that many of these core values do represent a code that is 
shared by a large part of the world. I think central among these core values is the 
notion that the individual is to be valued for himself and that people are equal 
in this respect. They're to be treated equally, and that they're not to be subjected 
to coercion in ways that violate due process. These ideas are spelled out with 
remarkable precision in the small group of documents that make universal moral 
claims. I'd like to drop a footnote here. There's no question that the application 
of these documents by various international commissions is subject to variation, 
but even allowing for various interpretations, the core values are not com- 
promised. Now, I would submit to you that the Chinese people, certainly not 
the government, but all those who labor under its yoke and those who gathered 
at Tianamen would agree with us that beliefs about the dignity of the individual 
and his right to equality under law entail democracy. After all, democracy 
essentially is a system of government in which limits are placed on the coercive 
powers of the regime over its citizens in order to secure individual rights. 

The consequence of accepting Father Winters' theory, which may be correct, 
is that we lose all possibility of making judgements other than through an 
ethnocentric lens and I think most of us know what this leads to. I submit to you 
that these values have indisputably become common articles of faith among 
peoples throughout the planet and this obliges us to honor their expectations of 
liberal treatment by intervening to help those suffering under despotism. 

FR. WINTERS: If I can just respond to that. One specific case in which I 
must say I have to disagree with you is the Gulf War. My position was that it 
was a classically just war. And, that we had a right to go to the defense of Kuwait 
even though it was not democratic and had no aspiration ever to become 
democratic. I believe, moreover, that our government was extremely careful to 
say that we were defending the sovereignty of Kuwait; we did not claim to be 
intervening for the cause of democracy. 

I believe that if you drift into the position of saying that the only legitimate 
government is a democratic government, you could not make a case for the Gulf 
War, and if you could not make a case for the Gulf War, you'd be making a case 
for the subjugation of an independent people. I think down that road there are 
some political and military impasses that we should be extremely careful to avoid. 

PROF. COLL: Setting aside for a moment the equation of democracy with 
political legitimacy, would you concede that the Gulf War could still have been 
justified as a defense of the fundamental principle of respect for human life against 
the wanton disregard for it implicit in military conquest? 



Panel Discussion 223 

FR. WINTERS: Yes. That's what I'm saying. 

PROF. COLL: Still, the invasion of Kuwait was an attack on these core values. 

FR. WINTERS: But my point is not that it was the rights of individuals being 
threatened, it was the right of that people to be independent as a people. I don't 
want to reduce rights to individual rights, and I think that the fundamental 
difference in our debate here, is whether sovereignty is a human right. 

The whole point of my thesis, and that of Walzer, and I think Terry Nardin, 
is the fundamental political human right of sovereignty. Some sovereign people 
will make individual rights their criterion. Other sovereign people won't, and 
they have a sovereign right to choose one or the other. I don't think we can 
legislate a particular understanding of the relationship between the individual and 
the State. Not only philosophically, but historically, this is a wholly Utopian 
enterprise. 

PROF. COLL: We have time for one last comment and I will turn to Judge 
Sofaer for his response. 

JUDGE SOFAER: I thought you were claiming more than that in the following 
sense: even if you would regard us as agreed on basic moral objectives for the 
world at this point, you think that the act of intervening in order to satisfy our 
sense of justice can cause more moral damage than standing back just because 
we don't know what will ensue from that act. I tend to share that concern. I 
think the basic rules of international law are derived from historical wisdom. 
Rules about sovereignty and about territorial integrity are barriers that confront 
us and force us to make allowance for the fact that just because we think we 
know better, we may not be able to make things better. And even though I 
believe we do know better, I accept these practical limitations on our reforming 
spirit. 

I greatly admire and appreciate the complex analysis of Professor O'Brien's 
just war valuations because they highlight the fact that even within an equitable 
system of law, one must cope with the issue of remedy. The creation of rules, 
even rules everyone accepts, does not necessarily mean that all violations, even 
if they are agreed to be violations, would be treated similarly. And I was very 
distressed when we walked away during the Gulf War from the statements of 
principle Jeane Kirkpatrick had made in 1981 concerning Israel's preemptive 
bombing of the Iraqi nuclear reactor at Osirak. You will remember that she 
condemned it because Israel had not exhausted the diplomatic means available 
to it prior to making the strike and she actually went on to equate it to the Soviet 
invasion of Afghanistan. It became impossible socially, politically, legally, morally, 
to defend any war on the position that everyone in the legal community had 



224 Legal & Moral Constraints on Low-Intensity Conflict 

taken for granted as being accurate, not just accurate morally. I mean, no one 
ever assumed that it was morally wrong for Israel to bomb the reactor. I certainly 
assumed that Iraq was preparing to manufacture a bomb that they might use 
against Israel, but I also thought it was a sound legal rule that we had stated in 
the U.N. And, I couldn't understand why we were walking away from it as 
though we had suddenly discovered after all, here is this evil man, and we didn't 
know all along that he would possibly use nuclear weapons against a country. I 
thought the answer from a technical point of view in Israel's case was that Saddam 
Hussein never withdrew his declaration of war, a fact that we didn't make much 
of at the time. 

Beyond that issue there was the question of an appropriate remedy for Israel, 
in light of its surgical strike against that reactor, which was a discrete action clearly 
driven by concern for its own survival. The experience of handing down perhaps 
thousands of sentences as a judge in a district court convinced me that different 
cases involving violations of the same law must be decided according to their 
respective merits. You will act differendy when an Eichmann is seized in 
Argentina than when someone else is seized there, but you don't necessarily want 
to change the rule about State sovereignty and territorial integrity because of 
that. We don't have an international law of remedies yet. I think we're on the 
way to it. Michael Reisman certainly has the kind of sensitive analysis that forces 
us to look for a remedy appropriately tailored to all the circumstances. I find 
myself very comfortable with the traditional rules, but I think that moral 
neutrality must necessarily accommodate our reactions to different circum- 
stances. We're comfortable with that flexibility, especially with respect to the 
constraints placed upon the United States by the veto power in the Security 
Council. But there's no getting away from the fact that flexibility is the rightful 
prerogative of every State by virtue of the heterogenous nature of human 
existence. 

PROF. COLL: Thank you. 

We have had a discussion that has been so rich that I was hesitant to stop it, 
so we're running a little bit late, but I would like to ask Professor Johnson and 
Professor Winters if they have any concluding comments, and then we will take 
a short break before coming back to Bill O'Brien and Bill Eckardt. 

PROF. JOHNSON: I'll just say one thing. I have really been delighted by this 
discussion about democracy which came at me totally unprepared. I had not 
anticipated that we would get into this. I didn't talk about it in my paper, and I 
sort of wondered why we were spending so much time on it. But, as I listened 
to all of you talking about it, a thought came to mind. These principles that I 
was discussing have developed over time under a great variety of political 
conditions. But I found myself asking what kind of political conditions in the 






Panel Discussion 225 

contemporary world would provide the necessary framework within which you 
could examine the relevance of these concerns, in an open and fair, and as far as 
possible, non-culture specific way. It seems to me that democracy is, in fact, the 
answer to that, and so maybe you all saw a wisdom in all of this that I, in writing 
my paper, didn't see. 

FR. WINTERS: Just to put in a word, while I may give the impression of 
being neutral toward democracy, this is not the case, nor am I neutral toward 
American democracy. Those of you who travel a lot, and I think Tom was struck 
by this on his visit to Germany, know that what's happening here today is really 
quite distinctively American. I have spent a certain amount of time in France. 
What we're doing here could not happen in France. That the military, the clergy, 
theologians, lawyers, State Department and CIA should all find themselves in 
one room talking about the ethics of war, is really quite a unique and distinctive 
American phenomenon and I could not be more at home here. 

PROF. COLL: Thank you, Father Winters. 

We will take a short break and then come back. After the next paper and 
discussion, I will try to share with you, from my viewpoint, some of the key 
themes and questions that we need to continue to wrestle with. Thank you. 



PROF. COLL: It's quite appropriate to resume our discussion by turning to 
William O'Brien's paper on Just War and I will turn the floor over to him now. 

PROF. O'BRIEN: Thank you, Alberto. 

My assignment was to talk about the relation of the modern just war doctrine 
to international law. In effect, it serves as kind of a bridge between people 
primarily acquainted with international law and those primarily focused on just 
war. It's a relation that's not that difficult to discuss today, but several years ago 
it would have been. It seems to me that in the last, roughly 10 to 15 years, interest 
in just war doctrine has increased markedly in the United States Government, 
and particularly in the military. Several of us, like Jim Johnson, Father Winters 
and myself have lectured here and at the Army War College. I was gratified to 
discover when I lectured at West Point several years ago, that every single student 
in a required ethics course in second year was reading Michael Walzer. So I think 
it's not surprising that you see over the years an increased use of language both 
from international law and from just war in the policy justifications that are made 
by the United States Government. Now, you don't have to agree with the 
policies, but I think we've made a lot of progress, at least in my lifetime. I don't 
remember all this concern with proportion and discrimination in World War II. 
Certainly not. It was more of a holy war attitude that we were right to use 



226 Legal & Moral Constraints on Low-Intensity Conflict 

overwhelming force. As Jim Johnson brought out in detail in his paper and then 
mentioned in his oral presentation, the particularly interesting dialogue between 
Secretaries Weinberger and Shultz several years ago, showed elements of just war 
thinking, although it was not expressly acknowledged in their statements. I 
haven't seen the final version of the report on the Persian Gulf conflict, which 
I gather is not out yet, but certainly the draft that came out last summer has a lot 
of language taken from international law terms and just war. So, I think it's an 
indisputable fact that we have made considerable progress in encouraging 
sophisticated normative analysis in the statements and justifications for U.S. 
defense and security policy. 

I see the role of just war doctrine to be threefold. First, to provide a framework 
for moral analysis of security issues. Second, to complement the international 
law, not to replace it but to complement it, providing guidelines for policy when 
appropriate. Third, to complement international law in forming justifications for 
the policies once they are put into effect. 

Now, I will probably disappoint some of our international lawyers because I 
have to give a somewhat pessimistic analysis of the state of international law 
relative to recourse to force. I am not as pessimistic about the law governing 
conduct in war. In the post- Vatican II spirit of trying to move from Latin to the 
vernacular, I tend to use the terms war decision law and war conduct law, rather 
than use jus ad helium and jus in hello. 

I think that the war decision law of international law has some problems. In 
the first place, I don't see any real prospect for a new world order. I think that 
the Security Council mandated action in the Gulf under Article 42 was unique, 
maybe the last one we will ever have of its kind. The circumstances that made 
it possible were extraordinary. Accordingly, everything falls back on Article 51, 
the interpretations of self-defense. As was already alluded to several times this 
morning, there are differing views of what constitutes self-defense. Some of them 
are very strict, amounting to little more than on-the-spot defense against 
immediate armed attack. That is a view held by a lot of very distinguished 
international lawyers, including many European and South American prac- 
titioners. I think they are very unrealistic. A lot of the texts that I have read, even 
ones written after 1945, are literal treatments of the Charter, and I think we have 
had quite a few years of experience since then to appreciate the advantages of 
the Myres McDougal idea of practice and expectations, and not just look at what 
the Charter provides. In any event, I would argue for a fairly broad interpretation 
of "self-defense" to relate to the various challenges that we happen to have 
experienced around the world since 1945. 

Now, where the just war tradition comes in, I think, is as follows. Those who 
would not favor a narrow, but rather a broader understanding of self-defense, 
will often use words as McDougal does, such as "reasonable," very much like 
the concept of reasonableness in domestic tort law. Well, I think a just war 



Panel Discussion 227 

doctrine gives us an analytic format for making judgements about proportionality 
and reasonableness that can be very useful. 

Finally, on the state of war decision law, I would like to repeat an observation 
that has occurred in a number of journals and books over the last few years, 
including Alberto Coil's article some years ago in the Harvard Journal of Interna- 
tional Law. There are many assumptions underlying the uncompromising purity 
of war decision law in the United Nations Charter. One is that specific settlement 
of disputes, with so-called better peace machinery, will be much easier and 
disputants won't need to go to war. Well, if you look around the world, you'd 
see a lot of intractable conflicts that are not amenable in the near term, to specific 
settlement. 

Secondly, of course, was the assumption that there would be a collective 
security capability that would gready remove the need for self-defense. With the 
rare exception of the recent Gulf action, that hasn't developed at all. 

Thirdly, I read into the Charter a priority for war avoidance over everything 
else, which is very understandable thinking in terms of 1945. But I think you 
see around the world an awful lot of people for whom war avoidance is not the 
highest priority. Justice is the highest priority. And justice is defined in terms of 
whatever ideological or ethnic agenda is at stake. So, there are a lot of people 
out there who are willing to employ armed coercion in some form or another. 

And finally, I want to agree with the point made in the last discussion, that 
quite naturally, the model for war we have in the United Nations Charter is 
mainly international conventional war. To answer Sam Sarkesian's question, I 
don't think that the understanding of the Charter provisions originally had 
anything much to do with the kind of sub-conventional warfare which is 
apparently the main problem we have in the present situation. 

Now, there's a second component though, to the war decision law. In addition 
to the law with respect to recourse to armed force, there's a law having to do 
with intervention. We have been around the circle several times and I'm not 
going to belabor it too much. I would just say that the principle of noninterven- 
tion is universally acclaimed and universally violated. Everybody, but everybody, 
believes in just intervention, my just intervention. Yours is bad intervention, but 
mine is good, whether it be pro-democractic, pro-communist, pro-Islamic, 
pro-this or pro-that. So you have quite a tension it seems to me, between this 
ironclad principle of non-intervention and once again, the practice and expec- 
tation not only of States but of the various other non-State political actors. 

In these circumstances then, I think that the war decision component of 
international law badly needs some kind of reinforcement or supplement in the 
form of analysis of reasonable interpretations and I think just war can provide 
that help. Now, I realize that I was subjected to a preemptive first strike this 
morning by Terry Nardin, who would probably have canceled the whole 
afternoon on the grounds that this is undercutting respect for international law. 



228 Legal & Moral Constraints on Low-Intensity Conflict 

But I do think that international law would benefit from what I'm calling the 
complementary application of just war doctrine. 

Now, in attempting this complementary application I assumed that the United 
States role in using armed coercion could take two forms. It might be some kind 
of collective self-defense, with the exception, perhaps, of the complicated debate 
about the international drug traffic where you could also argue that we would 
be acting in immediate self-defense. Alternatively, our role might involve some 
kind of what I would call reasonable intervention. Justifying that role requires 
that we find some criteria for determining reasonableness. I'll just go quickly then 
to the just war doctrine categories and comment on their relevance in determin- 
ing what is acceptable collective self-defense and what is acceptable reasonable 
intervention. 

First of all, there is the problem of competent authority within the United 
States. I won't go through the whole debate about the Executive versus Congress 
and the War Powers Act and all the rest of it. You're familiar with that, but it's 
a continuing issue. There is also the question of the competent authority of 
regimes that we may be helping in cases of counterinsurgency. I think that 
problem would take a lot more time than I have this afternoon, because it is very 
unusual to have to give counterinsurgency interventionary assistance to States 
like Denmark. Most of the States that you're going to intervene in are a mess, 
and have been that way for a long time. The addition of an insurgency to their 
enduring problems means that to expect them to get high marks from Amnesty 
International and Freedom House is perhaps unrealistic. Was the regime in 
Saigon competent enough? Well, these are judgment calls and I just flag that as 
an issue. 

Secondly, we need to examine what the substance of a just cause might be. 
Let's look at what just causes are out there. I think self-defense, individual and 
collective, is clearly one, but then you'd have to decide what that means. We've 
had some references to humanitarian intervention in our discussion today, and 
I'm a pessimist about it because of what some of the best minds, like Michael 
Reisman, and his predecessor Myres McDougal have written about it. This is 
the one point I was so excited about that I decided I'd turn out an article too, 
but then I discovered a nasty fact. I couldn't find any examples of it. You all were 
talking about whether or not we should intervene to help somebody who's a 
victim of oppression, but nobody wants to go and help the victims of oppression. 
There was no intervention in Uganda until finally its neighbors were fed up with 
the mess and went in for their own reasons. Walzer wants us to believe that Mr. 
Ghandi liberated Bangladesh because of the goodness of his soul and his desire 
to help the people in Bangladesh. I don't believe that for a minute. I think it was 
Indian power politics. But you see, you've got to picture a national leader saying, 
we're going into Ruritania. Now, we don't have any real interest in Ruritania, 
but we're going to go in there and save the Ruritanians from their own 



Panel Discussion 229 

government. That's going to be a very hard sell, I think, including in the United 
States. 

And then there's another claimant for the status of just cause and this gets to 
one of Sam Sarkesian's questions; the status of just revolution. Well, here I have 
to disagree entirely with Father Winters. I don't think there's a serious book in 
existence of contemporary just war doctrine on just revolution. If there is, I'd 
like to see it. There are a lot of reasons for that. One of them is that at least in 
the Catholic tradition, for a long, long time, revolution meant two things: French 
Revolution and Russian Revolution. They were bad for the church and bad for 
the people. So, in Catholic social ethics, for a long time the textbooks all said 
avoid it, avoid it, find some nonviolent means and the most extreme application 
of that, I'm sorry to say, was in Ireland where the clergy consistently opposed 
revolution. So, I think there's a whole new field for a study in two parts. On the 
one hand about just revolution, which would be relevant to our situation if we 
were to be assisting revolutionaries as we were with the Contras. Alternatively, 
in the case of counterinsurgency, how one makes a judgment call as to whether 
it's just to intervene against somebody else's revolution. 

Briefly, the issue of comparative justice, which is part of the just war analysis, 
presents the same problem that we have with competent authority. We saw this 
recently in the Gulf. Kuwait is not a Jeffersonian democracy, but it's better than 
Iraq. That's about the best you can say. You're not going to get a lot of clear cut 
cases like the comparative justice of the NATO nations and the Warsaw Pact 
nations. This was an easy one, but most of your potential interventions, I'm 
afraid, will have to be made in very muddy circumstances. 

The core of the just war decision is the calculus of proportion which balances 
the means required against the probability of success. Here you see, I think that 
there are resources in just war doctrine that international law simply can't muster 
because it is mechanical. It says go, no go. The calculus of proportion is an 
extraordinarily comprehensive, challenging, difficult exercise which requires that 
one attempt to assess all of the ramifications of what's likely to happen. It requires 
a great deal of speculation. Think back to the fall of 1990. I don't know about 
you, but I didn't meet anybody who had a clear understanding of what we should 
do in the Gulf, because the intangibles were just floating in every direction. How 
would the balance of power be affected? What was going to be the result in the 
Islamic world? How would the American people react? It went on and on and 
on. I have a great respect for the policymakers who survived that period while 
making very difficult judgements, which I happened to agree with. Whatever 
position you took, whether with the administration or with somebody like 
Senator Nunn, the Gulf War demonstrated that the calculus of proportion is an 
enormously difficult undertaking and I think that just war doctrine can help us 
to think through it. 



230 Legal & Moral Constraints on Low-Intensity Conflict 

Finally, the criteria of right intention particularly involves sticking to the just 
cause and not trying to add to it and then take advantage of it. That might be a 
problem in the kind of low-intensity conflict that we're talking about. 

Overall then, I would say that the war decision component of international 
law is rather fair, as you'd expect it could be, but not sufficiendy flexible to deal 
with many different kinds of situations, particularly those that are below the level 
of conventional international war. I want to emphasize that I'm not suggesting 
that we should rely on just war doctrine because it allows us more latitude in 
justifying our policies. I would argue that in many respects, it might be more 
difficult. There might be situations where we could legally justify recourse to 
armed force, but after looking at the total calculus of proportion, would decide 
no, this is not a prudent thing to do. 

I won't go into detail on war conduct law with respect to proportionality and 
discrimination, except to make one point. The war conduct law requirements 
of just war doctrine are more demanding than international law for this reason. 
In international law we distinguish sharply between the war decision law and the 
war conduct law. We say everybody has to behave themselves according to war 
conduct law, irrespective of the justice of the cause, which is a good policy. Just 
war doctrine asks that assessments of proportionality be made, not only at the 
strategic and the tactical level, but also at the grand strategic level. So one would 
consider military practices such as search and destroy in Vietnam, which might 
be perfecdy justifiable in terms of military operational necessity, and perhaps 
conclude that they were counterproductive to our larger ends. 

Now, I'd like to take a look at a couple of issues that were raised in the mandate 
I was given, and consider how just war thought might be applied to them. One 
issue that was raised is that of deception. I regret that I didn't have time to go 
back as Father Winters did into the classics of just war doctrine, because I think 
I might have found something there about deception. But, I took an easy way 
out and I found what I thought was pretty good material from international law 
which I could use to substitute in this case for just war doctrine. There is some 
relevant guidance on deception and I have it in my paper. Army Field Manual 
27-10 of 1956 cites the Hague Rules of 1907, Convention IV, in Article 23 (f), 
"It is especially forbidden to make improper use of a flag of truce, of the national 
flag, or of the military insignia and uniform of the enemy as well as distinctive 
badges of the Geneva Convention." The Hague Rules in Article 24 also provide, 
"Ruses of war and the employment of measures necessary for obtaining infor- 
mation about the enemy and the country, are considered permissible." The 
meaning of Article 23, I think, is clear. But the Army's interpretation of Article 
24 is more complex. A distinction is made between good faith and treachery or 
perfidy. Now, you understand we're talking about war and relations between 
enemies. In the case of counter-narcotics operations, you would be dealing with 
criminals. It is conceded that the line between the two is "indistinct." FM 27-10 



Panel Discussion 231 

observes that, "It would be improper practice to secure advantage of the enemy 
by deliberate lying or misleading conduct which involves a breach of faith, or 
when there is a moral obligation to speak the truth." Examples given are "to 
feign surrender so as to secure an advantage over the opposing belligerent" and 
"to broadcast to the enemy that an armistice had been agreed upon when such 
is not the case." These are "treacherous" acts. 

The discussion in 27-10 condones all manner of spying and subversion of 
enemy forces. To the two examples of perfidy or treachery could be added such 
possibilities in low-intensity conflict as luring enemies to parley with assurances 
of security and then capturing or killing them, or, more broadly, promising 
amnesty to those who surrendered their arms and then imprisoning them or 
killing them. 

In conclusion, I would consider FM 27-10's treatment of deception in war 
conduct law to be acceptable to just war doctrine, having noted that the subject 
has apparently not elicited treatment in the major contemporary just war texts. 
For all I know, there may be all sorts of things in the older, classic literature. 

As for assassination, which was discussed a number of times today, I share 
many of Jim Johnson's misgivings about it. I would want to limit it to a wartime 
situation or something equivalent to it and limit its target to people who had a 
strong military identification. Often, a dictator will in fact be a commander of 
the armed forces. I think if his titles were only nominal, I would be more worried 
about it. I think an acceptable example, which is very controversial, would be 
the Israeli assassination of Abu Jihad in 1988. This man was a principal organizer 
of terrorist attacks, including mass attacks, in 1978 near Tel Aviv. I think you 
could in a very real sense say that in the war waged by the PLO against Israel, 
he was an active military commander and a legitimate military target. 

The question of counterterror has also been mentioned a number of times, 
particularly with respect to the raid on Libya. Now it happens I just have a book 
out which I would like to plug, called Law and Morality in Israel's War with the 
PLO y the result of ten years of arduous work including the very unpleasant 
experience of reading all the Security Council debates on Israeli reprisal actions. 
I come away from that work with some strong feelings on the question of 
counterterror. I'll outline the essence of my argument very briefly. If one insists 
on a narrow reading of self-defense, which is what the Security Council did over 
and over and over again, that means only that a policeman or soldier can be 
stationed every place where somebody might commit a terrorist attack. That's 
not very practical. There is no way by passive defense that a State can defend 
itself against terrorism. So the Israelis very early on got the idea of what I call a 
preventive attrition approach; after spotting a pattern of terrorism, they would 
attack its sources. They don't wait for the terrorists to show up because they have 
no idea when they will strike. So the Israelis attack the terrorists where they live, 
in Jordan or Lebanon. Of course, this raises the question of sovereignty. I would 



232 Legal & Moral Constraints on Low-Intensity Conflict 

argue that both in international law and in just war doctrine, the State that 
consistently permits itself to be a sanctuary and a launching pad for terrorists, is 
inviting the kind of retaliatory raids that the Israelis have carried out. I guess I'm 
practically the only non-Israeli who agrees with the Israeli position that all the 
"law" is on the other side in the Security Council. It's very interesting the United 
States, which contributed a great deal of that law earlier on, began to back away 
from it, and then in 1986, used exactly the same argument that the Israelis had 
always used when we bombed Qaddafi's terrorist base in Libya. We argued that 
we could only counter a pattern of continuing terrorism by striking at its source. 

This leads me to conclusions that I think are probably fairly controversial. 
First, as the Israeli and U.S. governments now agree, self-defense against terrorism 
legitimately includes deterrent attacks. And second, as we concluded after the 
Libyan raid, self-defense extends to protecting one's nationals abroad against 
terrorism, which legitimately involves attacking its sources. 

I tried to stay away from discussing the drug trade as long as I could, but I was 
asked to say something about it so I have reluctandy entered the drug batde. First 
of all, it seems to me there is a problem in equating the international drug trade 
with armed aggression. I think it's going to take a great deal of thinking through 
because unless it is really the equivalent of armed aggression, just war doctrine 
and the international law of war won't have much bearing on it, undesirable and 
tragic as it is. 

Secondly, it struck me when thinking about it, and this is particularly relevant 
because of recent developments in Peru, these disciplines could come to bear 
more directly on the drug trade if it was intertwined with some kind of armed 
activity or coercion. Jim Johnson discussed that in his paper. In other words, if 
the Shining Path people in Peru are, at one and the same time, insurgents and 
major sources of the international drug trade, intervention against them, which 
I don't particularly recommend by the way, might be seen as a legitimate 
combination of counterinsurgency and counternarcotics operations. 

With respect to what I call the commercial drug traffic, deadly as it is, having 
no particular color, much less relation, to organized conflict, I just don't see that 
it's appropriate to use military force against it and I have the impression that a 
lot of people in the military are far from enthusiastic about the idea of getting 
involved in the drug war. 

My conclusions are the following. First of all, it seems to me that a good deal 
of contemporary positive international law on the recourse to armed force and 
on intervention is mechanical, incomplete and simply not sufficient to deal with 
the kinds of conflicts that are out there. 

Secondly, I think that the war conduct law is in better shape. It's closely aligned 
with just war doctrine, and I simply think that just war doctrine can contribute 
further to the definition of so-called reasonableness in working out the issues of 
discrimination and proportion. 



Panel Discussion 233 

Thirdly, getting to the issue again that Sam Sarkesian raised, it's quite clear 
that there isn't a big literature on the relevance of just war doctrine to the kinds 
of subjects that we've been dealing with. But I do believe, with Jim Johnson, 
that just war doctrine is a growing, developing thing that has all sorts of potential 
and, if we put our minds to it, we may find the resources within just war doctrine 
to take on new problems. 

One other point. I think it's important to emphasize that the respect for 
international law in areas having to do with conflict is mainly generated within 
the values of a State. It does not depend upon reciprocity. In the old days, we 
used to try to teach the troops, act as you would want to be acted against. Forget 
it. Ask the people who were prisoners-of-war in Korea. Ask the people who 
were prisoners-of-war in Vietnam. We didn't mistreat communist prisoners-of- 
war because they were torturing and mistreating ours. The reason Americans 
obey the laws of war is because we're Americans and we have a value system 
that says we will fight properly. We don't always live up to it, but I think that is 
our tradition. 

Finally, I want to emphasize that the other part of the sanction impelling us 
to respect these codes is what you might call both individual and social 
conscience. Of course you can cheat on just war doctrine. You can cheat on any 
kind of ethical system if you want to, but if you're serious about trying to do the 
right thing, then the sanction of your own conscience is what keeps you from 
manipulating and being hypocritical. My belief is that, more often than not in 
recent times, the United States has been conscientious and I think that we should 
be happy about the increased influence of just war doctrine in U.S. policy. 

Thank you. 

PROF. COLL: Thank you, Professor O'Brien. 

Now we will hear from Bill Eckardt from the U.S. Army War College. 

PROF. ECKARDT: Some ten years ago when I first began to read Professor 
O'Brien's writings, I scratched my head at his co-mingling of just war and law, 
and his strange terminology. He gave a paper at a similar conference in 1983 on 
special operations in which, he discussed the nature of the legal and moral debate 
we have in our society when we attempt to gain a consensus about going to war. 
That very practical paper, my students have consistently told me, is the most 
important article they read while they're at the Army War College. During this 
same time, there was a great reconsideration of lessons learned from the Vietnam 
War. The key conclusion of that reevaluation was that in a democracy the task 
of sustaining support for the decision to use force is an area of vulnerability 
comparable to a Clausewitzian center of gravity. Those two ideas combined in 
the minds of my students and I think I will show in just a minute, how practical 
an effect they had. 



234 Legal & Moral Constraints on Low-Intensity Conflict 

The third step in what I perceive to be a rather long trail, is the one that you 
have in front of you today, in which Professor O'Brien suggests a supple- 
mentation of international law with just war tradition. 

My students felt quite strongly that they not only had to learn the terminology 
of these two disciplines, but learn of their traditions and benchmarks, and 
internalize them because they, in fact, would be called upon to explain and justify 
what they did, and that is precisely what happened. There began to be another 
aspect of operations. One not only must plan, train for and execute a military 
operation; it appears that now one must justify, or perhaps a better verb is explain, 
what one has done. From the time when President Reagan defended that 
particular bombing raid on Libya, military officers have stood before the cameras 
and have had to justify or explain what has transpired. 

I think that Professor O'Brien seeks more than the commingling of two 
disciplines. What he is after is a rigorous interdisciplinary approach to policy- 
making when it involves the use of force. I would add to just war theory and 
domestic and international law; history in large doses, especially history of the 
profession of arms, and certain management information. An example of what I 
consider to be classic writing of this kind is Gunther Lewy's, America in Vietnam. 
Chapter seven, entitled, "American Military Tactics and the Law of War," is 
absolutely must reading for any military officer for thinking about Vietnam. 

Concerning the paper Professor O'Brien has presented today, I must admit 
that I am repulsed, attracted and intrigued by his approach. The advantage of the 
lav/ to me is certainty. Many would argue that nebulous just war theory not only 
does not add certainty, it detracts from it. In our secularly-trained society, instinct 
tells us that one should be very careful not to let religious ideas, if you will, intrude 
into the law. Will we selectively use just war theory only if the law is not on our 
side and we need to bolster our argument? My memory is that when President 
Reagan discussed the raid on Libya, the speech was long on just war, and very 
short on the law. Simplistically, self-defense under the United Nations Charter 
is our only just cause. So why talk about just war anymore? Well, I think there 
are some practical reasons we do this. As I intimated at the beginning of my 
remarks, it is this discussion, this practical reaching of consensus, that is key. I 
would say that what Professor O'Brien seeks is the linking of the Clausewitzian 
trinity of the people, the military, and the government in an effective union that 
can only be done in a democracy through intelligent debate. 

In closing, it seemed to me that the Weinberger Doctrine of 1984 reflects this 
process. That particular doctrine, which purportedly is our public debate on using 
force and going to war, does not mention the United Nations. If does not 
mention international law. Does not even acknowledge any legal prohibition 
against the non-defensive use of force. It came at a period of time when there 
was a general disenchantment with the relevance of international law to foreign 
policy; when one side appeared to thumb its nose at the law. It seems to me that 



Panel Discussion 235 

Secretary Weinberger sought out crucial benchmarks in reaching a consensus on 
taking the American people to war. When he did that, he drew on the just war 
tradition, and wanted an informed debate to gain consensus. I think that's what 
Professor O'Brien really seeks. 

PROF. COLL: Thank you Professor Eckardt. 

Let me try to hit at some of the key points made by the presentations that do 
not overlap significantly with points made earlier, and I will limit myself so that 
we can go on to the general discussion. 

Bill O'Brien's first thesis is that the war decision component of international 
law is excessively rigid, and morally and politically inadequate to deal with the 
difficult issues at hand. And that first proposition is one that I hope Michael 
Reisman, Tom Farer and Terry Nardin will feel free to challenge rather 
vigorously. 

The second proposition Professor O'Brien offers us is that just war tradition 
provides a useful and coherent moral analysis of security issues. In the process of 
doing so, it also complements international law because, in his view, just war 
tradition helps us to arrive at criteria of reasonableness through which we can 
then work to define what kinds of intervention and what kinds of use of force 
are reasonable, given the particular context that we may face. He recognizes, as 
all of us do in this room, that each peculiar use of force, each peculiar intervention 
is, as the adjective suggests, fraught with unique circumstances. And, therefore, 
the problem becomes one of applying the standards to those circumstances, and 
in that process, the word "reasonableness, " or in the words of the New Haven 
school, the question of "appropriate contexts and responses" becomes highly 
relevant. So in his view, the just war tradition provides means by which we can 
wrestle with standards of reasonableness. 

Professor O'Brien is clearly pessimistic about the future of the war decision 
dimensions of international law, although he is at least mildly hopeful about 
international war conduct law. He also cites the problem of intervention as a 
further example of the limitations of international law in helping policymakers 
to determine when is it appropriate to use force and how. He's pessimistic about 
the prospects for a new world order. The security mandate against Iraq was a 
unique phenomenon, he argues, so the prospects for collective security are really 
no better today than they were three years ago, and he makes that case rather 
strongly. 

Taking his discussion very specifically to the area of low-intensity conflict, 
Professor O'Brien raises several caveats that I think are useful for us to ponder. 
First of all, he points out that in any low-intensity conflict, definitions of 
competent authority will always be highly problematic because, as he said, we 
don't wage low-intensity conflicts in countries like Denmark. We only need to 
intervene in situations where legitimacy itself is at stake and is therefore 



236 Legal & Moral Constraints on Low-Intensity Conflict 

problematic. Secondly, the question of just revolution to which Father Winters' 
paper alluded, and to which our earlier discussion brought us, is also highly 
problematic. In Professor O'Brien's view, low-intensity conflicts that involve 
claims of just revolution will be exceedingly difficult even for the just war 
tradition, to analyze coherendy. Thirdly, we must beware, at least as I understand 
Professor O'Brien, of resorting to the humanitarian intervention justification in 
low-intensity conflicts, because, in his view, there is no genuine humanitarian 
intervention anywhere in the world. A proposition that some of you may feel 
free to challenge. Fourthly, he warns us to keep in mind that assessing the relative 
merits, the comparative justice of regimes involved in low-intensity conflicts, 
necessarily involves making difficult judgements. A fifth warning Professor 
O'Brien gives us has to do with the calculus of proportionality. He suggests that 
just war doctrine can help us, not only in low-intensity conflicts, but also in 
conventional conflicts, in determining the calculus of proportionality with a 
greater degree of nuance than international law can do. 

In conclusion, as he puts it, international law is highly limited. He provides 
very specific examples for this view from the area of counterterrorist operations. 
In his view, international law as reflected in U.N. Security Council resolutions 
dealing with various Israeli counterterrorist operations, is inadequate to address 
the moral and policy dilemmas faced by the Israeli State, and he suggests that our 
reading of the provisions made by the Charter for self-defense needs to be 
broadened. This harkens back to an earlier point in our discussion. Our 
interpretation needs to be broadened to include not only deterrence, but also 
situations in which our nationals are attacked outside of our own territory. I think 
that one legitimate question that needs to be raised is how broad a definition of 
self-defense we can really justify. 

Professor O'Brien warns us against over-commitment or even significant 
military commitment in the drug wars. In that sense, he is suggesting that perhaps 
our involvement in these drug wars should not be properly classified as low-in- 
tensity conflict, but more as law enforcement, although he agrees that in some 
cases in which the drug trade is tied to significant use of armed force by organized 
groups such as insurgents, it begins to resemble low-intensity conflict. 

Professor Eckardt gave a rather strong endorsement of Professor O'Brien's 
points. He reminded us that one of the important things about the just war 
tradition is, as Jim Johnson told us earlier, that its thought reflects forms of what 
Terry Nardin would call common morality. For a democracy, resort to force 
either in the form of low-intensity conflict or otherwise, has to be rooted in 
those notions of common morality if it is to yield the kind of public support 
requisite to success, if it is to be part of that Clausewitzian trinity of the army, 
the government and the people. 

I want to close here by raising some uncomfortable questions for both 
Professor O'Brien and Professor Eckardt. The first problem alluded to by 



Panel Discussion 237 

Professor O'Brien himself, and also by Professor Eckardt, is the potential for just 
war doctrine to be used casuistically. To what extent is there a danger of just war 
doctrine becoming simply an instrument by which we justify that which those 
in power wish to do? That is, of course, a danger present also for international 
lawyers. But given Professor Eckardt's recognition that law has the advantage of 
a greater degree of certainty, that it has certain more easily recognizable signposts, 
and that just war doctrine is indeed, quite flexible, how do we guard against the 
danger of just war doctrine simply becoming part of a rather mechanical process 
for justifying that which our government does? 

Secondly, when Professor O'Brien tells us that ultimately respect for inter- 
national law does not depend on reciprocity, but on our domestic moral values, 
I do believe he has an important point to make. But is he overstating his case? 
And so I want to raise the question for you: what is the role of reciprocity? 
Admittedly much of the reason we behave lawfully is rooted in our own domestic 
moral and legal values. But is there a place for reciprocity? Bill O'Brien suggests 
that there isn't. Do we really accept that? 

And then thirdly, I would like to hear from our legal practitioners, people 
such as Admiral Harlow, Admiral Robertson, Jack McNeil, Michael Reisman 
and Tom Farer, whether Bill O'Brien's case against international law is either 
fair or gives us a full account. I would in particular also invite the comments of 
Judge Sofaer from the viewpoint of his experience as Legal Counsel to the 
Department of State. More generally, to what extent can you, in your various 
positions of responsibility, see the usefulness or the coherence of just war 
tradition for the kinds of policy challenges that you face? 

PROF. O'BRIEN: Can we start with question number one? 

I've already acknowledged that there is a potential for misuse and for hypocrisy 
in applying just war doctrine. It seems to me though, if it is done seriously, not 
only as a matter of conscience, but as a matter of prudence, it can be of great 
value. You could take all the normative elements out of the process altogether. 
I've always thought just war doctrine would be a good standard format for a 
policymaker to sit down with and figure out what we are trying to do, what we 
are doing it with, what are the probable consequences, what are the chances of 
success and what are their ramifications that we can't entirely foresee? I've always 
thought it a very common sense sort of thing. So once again, you really can't, 
in the end, cheat on your own conscience and your own professional judgement. 
I think in this kind of business there's not very much room for kidding yourself. 

One of the things that strikes me very much about just war doctrine is the 
critical business of the probability of success. I didn't speak at length about that, 
but one of the aspects I emphasize is that it must be done repeatedly. You review 
every day, maybe every hour, what's going on, and at some point you may say, 
well, this seemed like a good idea. It seemed to be possible, but now it's going 



238 Legal & Moral Constraints on Low-Intensity Conflict 

wrong and maybe we better figure a way to get out. But if you really take that 
seriously, I don't think that you're likely to misuse just war doctrine. 

PROF. ECKARDT: May I comment on the second question about 
reciprocity? 

It seems to me that the view expressed by my students is a corollary of Professor 
O'Brien's thesis. We obey the rules because if we don't, we lose the support of 
our people and we lose the war. If My Lai didn't teach us anything else, it taught 
us the consequences of indiscipline on the battlefield. One uses this particular 
concept in going to war to get consensus and also to maintain it, as Professor 
O'Brien advocated in that '83 article, by following the high standards of just war 
and international law. That seems to me to be very important. 

PROF. COLL: Let me turn to the floor here. Professor Farer. 

PROF. FARER: I want to respond to the very question that you pose Alberto, 
and maybe the way to go about it is to look at the past 10 or 15 years and ask 
ourselves what sorts of activity would we want to engage in involving the use of 
force. If we could have done what we wanted to do within the parameters of 
law as those boundaries are generally seen, or as I earlier pointed our, the way 
most international lawyers outside of the United States do see the limitations on 
the use of force, then Professor O'Brien's point about the inadequacies of 
international law tends to fall. In my judgement the Afghanis weren't insurgents 
because there was never a legitimate government there. It was a government 
installed by an act of aggression. Actually, we were providing continuing 
assistance to the representatives of the sovereignty of the Afghan State, and 
therefore, our assistance there was well within the indisputable parameters of the 
existing international legal system. No problem. We don't have to have recourse 
to just war theory. 

Now, Bill's point about the way just war theory can supplement international 
law was useful. Even if the assistance to the Afghanis was clearly legal, we might 
still decide to search our consciences more deeply. One of the points I thought 
you were getting at was that the difference between legal analysis and just war 
analysis is that just war analysis is historically more generous, it's broader. It 
requires us to take more kinds of events into account. It requires us to start back 
earlier in terms of the longer term relationship between two entities, and it asks 
us to consider future relationships between those entities. Although I think you 
overstated the case in your presentation, law does tend to say you can go or not 
go. If you can go, it imposes somewhat fewer restraints, I think, on the 
decisionmaking process than just war theory. 

Let me take my argument to its conclusion by considering in very short order 
three other recent cases of U.S. intervention abroad. I always felt that a respectable 



Panel Discussion 239 

case could be made that Libya was making a connected series of military probes 
against the United States, and a proportionate response under the rubric of 
self-defense was legitimate. I could have argued the other side but I'm saying 
there's a very respectable legal case to be made there within contemporary 
restraints. 

As a number of us have said, I think it's rather hard to make a case for Panama 
as a lawyer. Nor can you make the case very effectively in Grenada. That's why 
even Margaret Thatcher voted to censure us for Grenada, although we had a 
little better case there than we did in Panama. 

Nicaragua was another case where a respectable legal argument could be made 
and was made by a number of advocates of assistance to the Contras. If we have 
the time I would make the contrary argument. The bottom line, if we look at 
these concrete cases and these are perhaps the most celebrated ones, is that 
international law as generally recognized by international lawyers and a very wide 
spectrum of opinion among our closest allies would have allowed us to engage 
in perhaps the most important uses of force that we have seen during the last 15 
years. 

PROF. COLL: Let me ask again to please identify yourself and your institution 
before you speak. 

MR. CONNELY: Tom Connely, with the Office of the Joint Chiefs of Staff. 
I take exception to Professor O'Brien's characterization of international law 
as being limited. Rather than looking at the example you used, the Security 
Council resolutions concerning the Israeli attack, a different approach with 
respect to the use of force might be to look at the practice and expectations, or 
as Professor Reisman says, incidents, where the Israelis really have created the 
norm. By responding to terrorist attacks, the United States used that same 
rationale. The Turks use it when they go after the Kurds in Iraq, and now most 
recently, Iran has used it. If you examine the practice and expectation of the 
legitimate component of international law over time, rather than in the light of 
a Security Council resolution formulated in reaction to a specific incident, how 
do you determine the legitimacy of the low end of low-intensity conflict — 
covert operations? How can we expect just war principles realistically to be 
applied to activities that are so secretive? 

PROF. O'BRIEN: I have a problem with covert activity because I don't think 
there's very much of it. We can't keep secrets in Washington. I would think that 
a covert operation would be covered, as Jim Johnson said about low-intensity 
conflict generally, by the same rules of just war doctrine. The fact that the 
evaluation would be covert wouldn't change the requirement to meet all the 
various conditions. 



240 Legal & Moral Constraints on Low-Intensity Conflict 

PROF. COLL: How about the point about practices and expectations? Aren't 
you defining international law too narrowly when you look at only the Security 
Council resolutions? 

PROF. O'BRIEN: I have mixed feelings about that because, after reading all 
these debates, I have a very low opinion, in the first place, for the legal scholarship 
that goes into them. In 40 years, there has scarcely been half a dozen serious 
attempts to back up an argument by reference to legal text. In fact, mainly the 
Israelis are the ones that do that, but the rest of them just pontificate about these 
things and after a while they begin to agree with each other. They say, well, as 
we rightly said 14 times already, we're right. That doesn't strike me as very sound 
legal scholarship. 

On Tom's example, I think if all your respected authorities were queried on 
both Libya and Nicaragua, they would absolutely blast us off the map. You say 
that a good legal case could be made and I think that is possible on Libya. I myself 
think it's a little tougher on Nicaragua, but I believe that the U.S. position is a 
very distinct minority, as suggested, among other things, by the ICJ decision. 
Now, I'm not saying whether it's good, bad or indifferent, but I'm just saying 
there is a difference between what gets churned out by the international 
community or whatever you want to call it, and what some of us might see as 
reasonable and proper in a particular situation. 

PROF. COLL: On this particular point, Judge Sofaer, would you like to jump 
in? 

JUDGE SOFAER: I agree with that. I think that if our military planners and 
political leaders started to listen to the group of international law scholars that 
Tom Farer is talking about, this country wouldn't have done virtually any of the 
things it's done in the last 12 years. They would have been glad, those 
international legal scholars, irrespective of the consequences. Maybe because of 
the consequences. 

The issue for me, is that you can't equate international legal scholars with the 
kind of people that Eckardt is talking about who have to sit around a table and 
plan for wars. When we had the exercise of Protocol 1 , there were many 
European legal advisors, to use his phrase in the way he intended, who were told 
by their governments that the protocol would be ratified for political reasons, 
while allowing for certain exceptions. Nonetheless, they sat down with us and 
carved out huge holes in the intended effects of the protocol with reservations, 
exceptions and interpretations. It wouldn't have been very difficult really, to 
design a manual for the NATO forces that the U.S. could agree to. But we 
determined not to ratify the resulting protocol because the JCS found, in a 
100-page study, that it would interfere not just politically with U.S. objectives, 



Panel Discussion 241 

but militarily. I think that there's a big difference between the international 
lawyers who function as legal advisors throughout the world and the international 
legal scholars who think about these issues in a different way, and have a different 
agenda. That's all there is to it. 

Bork wrote with some passion that morality had nothing to do with inter- 
national law and that's why he didn't give a damn about it. He wasn't prepared 
to support a system of law that doesn't care about justice. He cited prominent 
international legal scholars who had advanced the proposition that morality 
doesn't have anything to do with international law. I'd like to know what you 
are trying to do. Is Eckardt right that you progressed from a position where you 
were trying to merge the interests of justice with traditional international legal 
analysis into a single system, or are you talking about two systems that have to 
be applied in a complementary manner? Functionally, I want to illustrate the 
difference. We get invited to staff meetings where they're talking about the 
wisdom of something. They really do, our decisionmakers, even if they're 
lawyers, they make a distinction between the times when they call upon us to 
participate in the decisionmaking process as lawyers, and the times when they 
feel that they're really being asked to exercise their judgment. Are you trying to 
say that the lawyers in the State Department and the Department of Defense and 
the CIA, when it undertakes low-intensity operations that are covert, ought to 
be telling their bosses, "not only should you be hearing from us on whether this 
is an act of self-defense, but you should be hearing from us on whether you 
should invoke the doctrine of self defense here, because it won't go down with 
the people of America, or with the people of the world?" 

PROF. O'BRIEN: I'd like to acknowledge a separateness. I'd like to take the 
second version which maintains that the two are complementary, but very closely 
related. As I tried to indicate, I think that you can broaden your legal analysis by 
being informed, if you will, by the perspectives of just war doctrine, particularly 
on self-defense, which as we said this morning, is an inherent right of natural 
law. It was there a long time before Article 51. 

PROF. ECKARDT: I'd like briefly, if I could, to respond to Judge Sofaer. 

As a legal advisor to a combatant commander, I sat in the senior decision cell 
expected to speak forthrighdy, not just when asked about technical, legal things. 
Not only to give technical legal input, but to do what a lawyer does and listen 
and to try to insure that in effect, the honor of the United States was protected. 
Now, one is very careful when one does that and I tried to suggest that there is 
an interdisciplinary approach that lawyers can bring to the table. I don't see how 
one separates out the guidelines of international law and just war and the history 
of the profession of arms. All of those things bump up against each other in time 



242 Legal & Moral Constraints on Low-Intensity Conflict 

of crisis when you're sitting around the table and trying so very hard to do the 
correct thing. 

JUDGE SOFAER: Yes. I prefer that view myself, and obviously like to be 
invited to those meetings, but as you put it, you have to be very careful in those 
circumstances. What I think you're saying implicidy, is that there is a very 
circumscribed role for those kinds of factors in terms of what you should feel 
free to say to your commanders. 

PROF. ECKARDT: I would agree. I think it is very unfair for a lawyer to 
enter into the policy debate and misuse the law as a club when the law isn't the 
driving force. One must clearly separate one's advice as a lawyer and one's advice 
as a staff officer, although they may come from the same person. 

PROF. COLL: Bob Turner. 

PROF. TURNER: Bill, I want to take you back to Nicaragua for a moment 
just because it strikes me as being a typical case of low-intensity conflict. Let me 
quickly try to set forth the elements of the argument as I see them, and see where 
we disagree. 

It seemed to me there was an overwhelming body of evidence that the 
government of Nicaragua was trying to overthrow the government, not only of 
El Salvador, but of other neighbors. It was training guerrillas, supplying them 
with equipment, giving them intelligence advice, money, smuggling airplane 
after airplane and boatload after boatload of arms from Vietnam and Cuba, to El 
Salvador and so forth. Even the Boland Committee unanimously concluded that 
the evidence on Nicaraguan aggression against El Salvador was, I've forgotten 
the word, but it meant unquestioned. The U.S., subsequent to that, began a 
mirror-image campaign of providing aid, training, intelligence advice, money 
and so forth, to a group of Nicaraguans to try to put pressure on the Nicaraguan 
government to stop its aggression. The mirror image campaign seemed to me to 
be a fairly clear case of self-defense. There's a lot more to it than that, but do you 
disagree with what I have said so far? Is the difference a factual one or do you 
not think that it's legal? The government of El Salvador, I think, clearly asked 
us for help. Is it that this kind of low-intensity aggression does not warrant 
collective self-defense or do you not believe the aggression took place, or what? 

PROF. O'BRIEN: The original theory of the case was plausible. This was an 
action, rather an unusual one, in which we were in effect exporting revolution 
as a self-defense measure. That made me nervous from the outset because I spent 
a good deal of the '60s attacking North Vietnam for exporting revolution to 



Panel Discussion 243 

South Vietnam. I was a little bit nervous now about us exporting revolution, but 
okay. 

PROF. TURNER: But defensively there's a difference. 

PROF. O'BRIEN: Yeah. All right. 

But time went on. Year after year, and I didn't have the impression that the 
number of Nicaraguans entering into El Salvador was all that great. In just war 
terms, this raises questions of proportionality. Secondly, the Contras did precious 
little. They were kind of a joke. Their operations were rare and apparendy didn't 
amount to very much. Over time it appeared to me that this was a very dubious 
approach. Then the third piece, I don't know quite how this fits in, but I was 
very unhappy with the Reagan administration's apparent claim that they didn't 
intend to overturn the Sandinista regime — which seemed absurd. What else were 
the Contras doing? I don't think they had in mind a coalition government or 
something of the kind. 

PROF. TURNER: But you're not arguing that it's impermissible to use 
defensive force against that kind of armed attack? 

PROF. O'BRIEN: Not in principle but it's a judgement call. 

PROF. COLL: Admiral Harlow. 

RADM HARLOW: At your request I do have a couple of comments on the 
practical application of these rules for the United States in the decisionmaking 
process. 

One thing bothered me and that is the lawyers arguing about what is lawful 
and what isn't lawful. It's technically sterile for us to argue that certain actions 
that have been undertaken by significant actors on the international system are 
illegal. When they occur they have the effect, perhaps difficult for us to admit, 
of changing the law. As far as the practice of law is concerned, the difficulty arises 
not so much in the conduct of war. I think that the rules are fairly clear, the 
manuals are fairly clear, and the wars are fought in accordance with the standards 
that we believe in. The difficulty arises on this issue of when to resort to armed 
force. And as was pointed out, these considerations often hinge on points of fact. 
Particularly in the low-intensity area, we're talking about limited intelligence 
and a shortage of facts. So it becomes impossible for a lawyer to seize upon factual 
fragments and say, this is legal or illegal. 

Having said that, it's my observation that people in command centers and 
senior officials carry their own baggage with them, a collection of moral, ethical 
and religious convictions. There is something in the American gut that acts as a 



244 Legal & Moral Constraints on Low-Intensity Conflict 

brake upon certain conduct. It's dangerous to carry that too far because it is, I 
suppose, an undefined characterization of the American will, if you were to 
generalize it, but nonetheless I think that it has been a factor in decisionmaking 
in the United States of America for a long time. 

PROF. COLL: Jack McNeill. 

MR. MCNEILL: I just wanted to comment on the idea or the thesis that 
international law is so inflexible, one should look very carefully at an alternate 
set of complementary rules. I can certainly see the value of the just war analysis 
in the policy context, but I don't think we should give up on the international 
legal perspective. Although I certainly agree with Professor Farer's comment 
earlier, about the body of opinion that seems to prevail among European 
academicians and others, and their low regard for legal theories the United States 
has propounded regarding Panama, Grenada, and Libya, I think we have to 
remember that even though we may stand alone, the practice of States is a very 
important source of international law. If we have reached our conclusions by 
applying the law as we understand it in good faith, though with perhaps greater 
flexibility than is observed elsewhere, having preserved the integrity of our 
process, then we can say that our actions are legally defensible. We should not 
be cowed by the collective wisdom of other nations. We have to take it into 
account, but we have our own responsibilities within the United States to advise 
decisionmakers as to what the law genuinely is and how to apply it to the best 
of our ability. 

PROF. COLL: We have time for only two more interventions. Michael 
Reisman and John Collins. 

PROF. REISMAN: I'd like to go to the question that Alberto put to us at the 
beginning of this discussion period. Perhaps I can approach it by going back to 
some observations that were made from the floor. 

I agree with Jack's final comment. First off, I don't think that Tom is correct 
in saying that European professors who have spent a good deal of time pontificat- 
ing on the law all criticize us. Many of them, in fact, particularly French lawyers, 
are quite supportive of much United States action. The jury, if that is the jury, 
is much more mixed than Tom suggested. The point is that 25 or 30 European 
professors, some of whom may have cultivated a style that implies they commune 
with the dead before they issue it, have strongly criticized us. It's absurd to think 
that 25 or 30 professors, most of whom are out of touch, are part of this 
extraordinarily rich process that you struggle with every day. The fact of the 
matter is the lawyers in government are not international lawyers either. This is 
an extraordinarily rich process that's woven in a very complex international 



Panel Discussion 245 

pattern. It involves States and international organizations and all the people who 
participate in them. 

Judge Sofaer said that high policymakers sometimes don't consult their 
international lawyers when they make decisions. That doesn't mean that what 
they're doing is not international law. That is international law. That's the stuff 
of international law, and the expectations that their deeds create are what it's all 
about. Bill, in an earlier intervention, said that he had no truck with people who 
kept quoting and dissecting the language of the United Nations Charter decades 
after is was concluded. He is interested in practice, what was actually done. But 
the practice of the Security Council or the General Assembly cannot be excluded 
from this whole rich process. That's what we have to look at. If we don't, what 
we're going to do is create a taxidermological creature that has all the vitality of 
a stuffed owl and you know that's not what international law is about. 

Now, what are we looking for? We're looking for the expectations that are 
shared by politically relevant actors. That's what our decisionmakers come up 
against when they want to make a choice. The question they ask themselves is, 
if we do this are others going to characterize it as impermissible, and if they do, 
what price are they going to impose? The price may be quite small or it may be 
quite large. This is really the stuff of international law and this is what we should 
be pointing out. If the decisionmakers who are paying our fees don't call us, then 
it's obvious that we're not providing them with the right information. I don't 
think the 25 lawyers that Tom is concerned about are in any position to make 
judgements, or for that matter to speak about international law unless they can 
show us that they go through this process, and I don't think they do. 

Bill, I think, in presenting what he calls the natural law approach and criticizing 
the international law approach, is really just using a different perspective on 
international law. What he calls natural law is very close to the perspective that 
I think has been taken at New Haven and many other places over the years. 
There are a number of different ways of looking at the law. It's a very complex 
creature. Take John Austin's famous statement, "Law is the order of political 
superior to political inferior, accompanied by the imposition of an evil for 
deviation." You've got a political superior. You've got a political inferior. You 
have communication. That's John Austin's classic definition. If your perspective 
is that of the political inferior and you're the receiver, then you tend to look at 
law in a certain way. But if your perspective is that of the political superior, and 
that I submit is the perspective you adopt on behalf of your clients, then you 
look at things quite differendy. Then you ask yourself, what are the larger goals 
of the system? What are the conditions that I've got to deal with here? What are 
the past trends? What are the conditions that accounted for them? What are the 
likely consequences of different future choices and what options can I invent? 
What's the power process that I'm dealing with? These are the factors that Bill 
calls a modern natural law. I submit to you that it is the perspective from which 



246 Legal & Moral Constraints on Low-Intensity Conflict 

people make decisions, whether they're making decisions domestically or inter- 
nationally. 

I always like to hear Bill. He's so realistic and so refreshing and so common 
sense. The only question I have is whether or not he's using the wrong terms to 
describe what he's doing. 

PROF. COLL: The last intervention this afternoon is from John Collins from 
the Library of Congress. 

MR. COLLINS: We spent all day listening to fascinating legal, philosophical 
and theoretical views of sovereignty and just war and the right of self-defense, 
and I'm sitting here asking myself how do I use this mish-mash of ideas for any 
practical purpose in my job? How will you synthesize the ideas that we have 
enjoyed all day and put them to some practical use? 

PROF. COLL: I think that the process that we're engaged in here presupposes 
several things. One is that decisionmakers, as Admiral Harlow reminded us, are 
human beings, they're moral beings, they're reasoning beings. In Admiral 
Harlow's words, they carry baggage with them. They have presuppositions, 
assumptions and notions about reality. These ideas are ultimately moral in 
character because they affect how those who believe in them act morally. They 
fix the bearings that their owners take in a world in which all action takes place 
against the background of a moral structure. 

I think that the kinds of discussions that we have had here, first of all, push us 
into grappling with some of the more awkward, more uncomfortable questions. 
They push us to look beyond the kinds of operational processes that we're 
involved in day-to-day, which often degenerate into turf fighting and the pursuit 
of bureaucratic power for its own sake. They push us toward asking questions 
about ends and goals. What is it that we should be about and what are the limits 
as we go about seeking these public policy goals? Anyone in either the State 
Department or the Defense Department that is involved in the formulation of 
policy, is involved whether he or she likes it or not, in the process of moral 
reasoning as well as legal reasoning. We also live in a society in which it's very 
important for us to understand, by virtue of its strategic culture, by virtue of its 
domestic moral values, and also by virtue of its role and its responsibilities in the 
world, what kinds of constraints are placed on our policymaking. And so, I see 
this as a process that helps us to clarify our assumptions, that broadens our 
viewpoint and that takes us back to first questions. In that, I think I see a 
tremendous value. This is not a mechanical world. I will not walk out of here 
able to decide in a lock-step fashion what particular policies we should support 
towards Peru, a very good example of a low-intensity dilemma unfolding before 
our eyes right now. But, I do think that a few points have been made, a few 



Panel Discussion 247 

questions have been raised and a few nagging reminders have been resurrected 
by our colleagues in this room that will help me perhaps to rethink one or two 
questions with regard to our policy towards Peru. 

Before we conclude, let me just mention a few issues that I think our discussion 
this afternoon has raised. 

At a very broad level, I think that we keep coming back to Terry Nardin's 
analogy and to Michael Reisman's elaboration on that analogy, regarding Plato's 
cave and the relationship of moral philosophy to policy and the relationship of 
policy to operations. The question that we need to grapple with is whether we 
really believe in this room, that the shadow wisdom of those of us in the cave 
can be illuminated by the higher world outside it. That ties into the question of 
what is the role of lawyers as well as of moral philosophers who have an interest 
in public policy questions relating to national security. All kinds of questions 
come up regarding the integrity of judgment. What are the standards or safeguards 
that we need to protect that integrity of judgment so that neither lawyers nor 
moral philosophers become simple advocates and do manage to retain a sense of 
objectivity as they engage in that rich process of counseling their clients? The 
lawyer is hired by the client but he is hired by the client to exercise his judgment. 
At least I would want to hire a lawyer in order for him to have the freedom and 
the integrity to tell me when I should not do something that I'm contemplating. 
That applies more broadly to the question of moral philosophy. So, that 
relationship of philosophy to policy and to operations is one that we need to 
keep our eyes on. 

Secondly, we need to keep wrestling with the question of the definition of 
international law, and exactly what we mean by international law. Michael 
Reisman just offered us a very eloquent and persuasive account of international 
law, which I would suggest differs from some of the more popular notions about 
international law as a set of rules or, as a dear friend of mine likes to call it, as a 
TV set that is either turned on or off. So we need to look closely at whether our 
definition of the process of international law is flexible enough to incorporate 
moral and prudential considerations. Michael Reisman would argue that it does 
and some of us in this room would agree with him. 

Thirdly, moving to a different set of issues bearing on low-intensity conflict 
policy, how do we address the problems raised by Father Winters' position about 
the cultural context of justice? Father Winters implied that we need to be aware 
of reformist agendas and suppositions that often drive our support for low-in- 
tensity conflict operations in different parts of the world, be they coup d'etats to 
overthrow the nasty dictator, or support for an insurgent group that we think 
will do some good things for a particular country. I would suggest that Father 
Winters' warning needs to be tempered by the reality that not all low-intensity 
conflicts are radically reformist in nature. There are some types of low-intensity 
conflict environments in which we become engaged for purposes of making a 



248 Legal & Moral Constraints on Low-Intensity Conflict 

small difference. I don't think that we always display the kind of reformist zeal 
that Father Winters described, but it's a very important warning, because there 
is a strong reformist zeal in the American temperament to begin with. So those 
of us involved in the low-intensity conflict policy business need to be aware of 
this temptation. 

Beyond that, however, can we agree that there are certain core values which 
need to be included in the calculus for deciding when a resort to force may be 
justified? Can we agree on what these core values are? Do they go beyond respect 
for human dignity and protection of the person? Shouldn't they include treating 
human beings as ends in themselves and with equality, as Michael Reisman 
argued? This is definitely part of the core. How much farther beyond this are we 
prepared to go? 

Father Winters maintained that sovereignty is a core human right. How far 
are we prepared to argue with that position, and how do we address it in the 
context of some situations around the world in which sovereignty is easily 
manipulated by elites that clearly do not represent the people over which they 
claim power? Are we perverting the word "sovereignty?" I think Jim Turner 
Johnson would suggest that in those cases we are perverting the meaning of 
sovereignty and we are perverting the meaning of right authority when we allow 
sovereignty to be used as a shield behind which regimes that really don't represent 
their peoples can shelter. This, of course, would have to be in the context that 
we would call egregious. Not necessarily in mild dictatorships where there might 
be reasonable differences, but in a case which everyone in this room would agree 
that a particular regime was not representative. 

Let me close with one question that we have not wrestled with yet, and I 
think is important, and that is the following: does low-intensity conflict pose 
peculiar challenges for the jus in hello} That is, for the laws of warfare? If so, what 
are these? We have spent a great deal of effort here in discussing the jus ad helium, 
but that is only part of the definition of a just war. Ultimately a war is not 
justifiable if the means involved in waging it become sufficiendy dirty or 
disproportionate, or indiscriminate, or sufficiendy evil in themselves. 

I do believe that low-intensity conflict poses some peculiar challenges for the 
jus in hello and I have not thought through the problem with any degree of care 
or rigor, but I would like to invite you all to join me in exploring that question. 
Can you fight a clean low-intensity conflict? How far can you do that? Are there 
things about low-intensity conflicts that make it more difficult to fight them 
relatively more cleanly than other kinds of conflict? That is an important policy 
question that we need to deal with. 

Thank you for your great patience, for your enthusiasm. I want to thank all 
of the members of our Just War Panel: Professor Johnson, Father Winters, 
Professor O'Brien and Professor Eckhardt. 

Thank you very much, once again. 



PART FOUR 



U.S. POLITICAL AND CULTURAL CONSTRAINTS 
ON LOW-INTENSITY CONFLICT 



Chapter IX 

Low-Intensity Conflict in the 

Post-Cold War World: 

The American Moral-Cultural Environment 



by 
George Weigel* 



I. Introduction: Taking Chesterton Seriously 

The public debate on American policy options that took place between the 
Iraqi invasion of Kuwait on August 2, 1990 and the suspension of 
Operation Desert Storm on February 28, 1991, was loud, raucous, impassioned, 
sometimes confused, often insightful — in a word, "democratic." Moreover, 
that debate was frequently couched in explicidy moral terms drawn from the 
classic categories of the just war tradition. Cabbies and subway riders, barbers 
and bartenders, talk show hosts and talk show callers, op-ed pundits and religious 
leaders, Members of Congress and Executive branch officials all argued in terms 
of questions like these: Was ours a just cause? What were our intentions — what 
were we really after? Who was the authority competent to authorize the use of 
force against Iraq: the President, the President authorized by Congress, the 
President authorized by the United Nations? Did we have a reasonable chance 
of success? Could we discriminate between combatants and noncombatants? Was 
military force a last resort? 

Not all of the participants in that six-month long public seminar argued as 
wisely as they might have done. But let us not dwell here on the irony of a 
situation in which the Chairman of the House Armed Services Committee had 
to explain the meaning of certain key just war criteria to the archbishop chairing 
the U.S. Catholic bishops* international policy committee (and on national 
television!). Rather, let us focus on the fact that the American people and their 
political leaders instinctively reached for just war categories — which is to say, 
for moral categories — in their attempt to sort out the options available to the 
United States after the Iraqi invasion, occupation, and attempted reduction of 
Kuwait. Indeed, the instinctive consensus that these were the relevant categories 
was so widespread that when other rationales were bruited — such as Secretary 
of State James Baker's defense of the possible use of U.S. military force to eject 



252 Legal & Moral Constraints on Low-Intensity Conflict 

Saddam Hussein from Kuwait as a matter of "jobs, jobs and jobs" — the public 
reaction was swift and negative, and the attempt to appeal to what were deemed 
baser motives was quiedy (and quickly) abandoned. 

Indeed, and admittedly without the benefit of careful survey research, I would 
suggest that the sourness in the national spirit these days, even on the matter of 
Desert Storm, has at least something to do with an intuition that, in the war's 
end-game, the United States abandoned its larger moral purpose in the Gulf War 
and fell back into policymaking according to the seductive (and deceptive) 
categories of realpolitik — with disastrous consequences for the Kurds and 
Shi'ites, and with the singularly unsatisfactory result of Saddam Hussein still in 
power and still busily pursuing a nuclear weapons capability. 

Be that as it may, the key point is this: the debate between Desert Shield and 
Desert Storm demonstrated that foreign and defense policy in the American 
context does not exist here, and moral reasoning somewhere over there. Americans 
understand that there is one human universe of thought and action, in which 
"morality" and "politics" are inextricably intertwined. That national under- 
standing is more often reflexive than reflective, to be sure. And no doubt there 
continue to be residual problems caused by the moralism bequeathed to the 
national political culture by our Puritan and 19th century evangelical forebears, 
who frequently identified the norms appropriate to social ethics with the norms 
appropriate to personal and business relationships. But the larger, and more 
significant point is that America remains, as G.K. Chesterton famously described 
it, a "nation with the soul of a church." 

Put another way, realpolitik is not simply a poor guide to policymaking (and 
particularly in a revolutionary period such as ours, in which a realist emphasis on 
"stability" as the overriding norm in the policy calculus can help produce 
precisely . . . instability). Realpolitik calculations and realpolitik rationales for 
policy are also a sure prescription for discord and disunity within a body politic 
than understands (once again, instinctively) that realpolitik is not an escape from 
moral reasoning, but rather a debased form of moral reasoning. 

That is not the way other countries are. Indeed, one cannot imagine the kind 
of debate that took place here between August 1990 and March 1991 taking 
place in the French fifth republic prior to one of its occasional African adventures; 
nor, at the time of the Falklands/Malvinas war, was there anything in Great 
Britain resembling the public moral argument in America over Desert Shield/ 
Desert Storm. But that is the way we are. And that is why political and military 
leaders dare not ignore Chesterton's insight into the American character. The 
moral argument has to be engaged. 

And in terms of the kind of world in which we are likely to be living for the 
foreseeable future, that means engaging the moral argument lodged within the 
broader debate about low-intensity conflict. 






Weigel 253 
II. The Necessity of Leadership 

Engaging that moral argument is not an exercise in abstraction. The kind of 
morally reflective statecraft suggested by the logic of the just war tradition requires 
that we take careful stock of our empirical circumstances. That means, among 
other things, taking the temperature of the American body politic. 

It is not always pleasant to have one's forecasts vindicated. And those of us 
who were writing, in the late 1980s, that the foreign policy debate of the 1990s 
was likely to be a reprise of the 1930s contest between internationalists and 
isolationists (or "non-interventionists," or "new nationalists," or whatever) 
would just have soon have been proven wrong. Alas, we were right. 

This debate is, quite obviously, crucial to the future of the debate over 
low-intensity conflict. If the isolationists win, much of the debate over low-in- 
tensity conflict will become moot. There may be residual support for certain 
anti-terrorist and counter-terrorist activities, and perhaps for a modest U.S. role 
in such contingency operations as disaster relief and shows of force. But that will 
be about it. 

What would it mean for the new isolationism to "win?" It is difficult to 
imagine the circumstances in which the American people buy the new isola- 
tionism whole hog, and retreat into the kind of demi-hemispheric Fortress 
America proposed by Patrick J. Buchanan. But it would not require so 
comprehensive a victory by the new isolationists to push the low-intensity 
conflict option to the far nether reaches of the policy menu. "Winning," in this 
political-cultural sense, means simply that the American people decline to take 
up the burden of leadership in a newly unipolar world and that the United States 
becomes, in consequence, a reactive, rather than pro-active, power in world 
politics: content with guarding its interests (rather narrowly construed), and 
resolutely eschewing any serious attempt to shape a new world security system 
in the aftermath of the Cold War. 

The American people have every reason to want a break at the end of the 
Cold War. If we think of the Cold War (as I believe we should) as the second 
stage of the great anti-totalitarian war that began in 1939, the United States was 
in something resembling a state of war for over fifty years (from the point at 
which President Roosevelt began the clandestine war against German U-boats 
in the North Adantic in 1940, until August 21, 1991, at which point the USSR 
ceased to exist as an effective political entity). And no doubt there are reasonable 
arguments for scaling back some of our commitments — political and budgetary 
— in the aftermath of our victory. 

But the end of the Cold War has not seen the sudden outbreak of "multi- 
polarity," as many in the international relations guild seemed to expect. "Europe" 
does not exist as a meaningful political reality, as the ruins of Dubrovnik mutely 
attest. Nippobashing aside, Japan is a great power in economic terms alone; and 



254 Legal & Moral Constraints on Low-Intensity Conflict 

while that is nothing to be sneered at, it does not translate into the capacity to 
bend the grand politics of nations to one's will (or, perhaps less brutally, to shape 
the basic trend lines of world politics). The Soviet Union no longer exists, and 
the successor Commonwealth of Independent States is in no position to do much 
of anything beyond trying to dig out from under the economic, ecological, and 
spiritual rubble of the totalitarian system. China is quite probably headed for a 
period of internal disarray, after the collapse of the Maoist/Dengist gerontocracy. 
The United Nations remains what it has been since 1945: a stage on which a 
script written elsewhere is played out. 

In sum, the end of the Cold War has not brought us back to the Europe of 
the 19th century, i.e., a multipolar world of five or six great powers; nor has it 
ushered in a new era of internationalism in which international legal and political 
organizations are the primary actors and the primary political reference points in 
world politics. Rather, the end of the Cold War has seen the emergence of a 
unipolar world in which there is but one Great Power — the United States — 
with the requisite combination of political, ideological, cultural, economic, and 
military strength to determine, if it chooses, the ground rules for the immediate 
future of world politics and economics. Moreover, as the Gulf crisis and the 
debacle in Yugoslavia should have taught us, the alternative to American 
leadership in the world is not multipolar leadership but chaos. 

The key question, of course, is, whether the United States — which is to say, 
the American people — will choose to exercise the leadership role which history 
has thrust before us. 

I cannot tell you whether we will, in fact, accept the burden of leadership in 
a unipolar world. But I can say, with some assurance, that we will most certainly 
not take the lead in shaping the ground rules of international life in the post-Cold 
War world until we are summoned to do so by our political leaders. Which, to 
put it briefly, we have most assuredly not been summoned to do. 

The failure of U.S. political leadership on these questions in the year since 
Desert Storm has been comprehensive. The national Democratic Party has never 
grappled seriously with its leadership's massive misreading of the signs of the times 
from the early 1970s on. There has been no intellectual and moral reckoning 
with the pattern of failure exhibited by Congressional Democrats on five of the 
defining foreign policy issues of the past decade: the nuclear freeze proposal, the 
question of economic sanctions against South Africa, support for the Nicaraguan 
democratic resistance, assessing the reform communism of Mikhail Gorbachev, 
and "giving sanctions a chance" in the Gulf. Until that reckoning takes place — 
and there has been very little of it evident on the campaign trail these past several 
months — we need not expect the Democratic Party to call the American people 
to the leadership role that could be theirs in a unipolar world. 

Nor should it be thought that things are in much better shape on the other 
side of the partisan fence. President Bush's celebration of victory in the Cold 



Weigel 255 

War in his January 1992 State of the Union address was welcome. But it was also 
at least five and a half months too late; it followed hard on the heels of a sour 
pattern of administration deprecation of the reformist forces in the Soviet Union; 
it ill fit with the administration's curious (and, to my mind, unbecoming) 
nostalgia for the uncomplicated days when all one had to do was deal with 
Mikhail Gorbachev (to the tune of "Moscow Nights," in the East Room of the 
White House); and it was incongruent with the administration's singular lack of 
energy in devising effective support for the processes of democratic and market 
consolidation in the new democracies of central and eastern Europe. Nor did 
the President take the occasion of his first public acknowledgment of freedom's 
victory in the Cold War to lay out a new design for American leadership in the 
post-Cold War world; rather, reacting to the current political wisdom instead of 
aggressively shaping the public agenda, the President left the implications of our 
Cold War victory dangling, so to speak, and spent the rest of his address on 
(admittedly pressing) domestic issues. 

Historians of the future will find much of this simply bizarre. Think about it: 
at no point between the Revolution of 1989 in central and eastern Europe and 
the aftermath of the New Russian Revolution of August 1991 did the President 
of the United States address the American people to define, publicly, the moral 
and political meaning of the end of the Cold War, or to sketch the contours of 
an active American engagement in shaping the future course of world politics 
and economics. Moreover, in an election year, no challenger to the President 
tried to fill that astonishing gap. The challengers from the opposition party would 
not do so — or could not, without alienating key parts of their constituency, 
which had long since found the Cold War distasteful and were thus not in much 
of a mood to celebrate American victory in it. The challenger from within the 
President's party chose to look backward rather than forward. And thus the gap 
remained. And the country, not unpredictably, decided that it was in a malaise. 

It is, as they say, passing strange indeed. 

There is no way to think seriously about the relationship of American political 
culture to the problems of low-intensity conflict without confronting this 
horizon-setting issue of internationalism vs. isolationism. And there is no way to 
confront that issue without addressing the issue of political leadership. Just as 
credible and persuasive political leadership is recognized (in all the literature I 
have reviewed, at least) as an essential condition for a successful low-intensity 
conflict policy, so is persuasive and aggressive political leadership necessary if 
America is to take the leadership role of which it is capable in world affairs. 

Only when our political leadership has defined our new role in the new 
post-Cold War world — which, in my judgment, means only when the political 
leadership has explained to the American people the facts of life about 
unipolarity — will we be able to defend any broad-scale low-intensity conflict 



256 Legal & Moral Constraints on Low-Intensity Conflict 

policy, beyond some very "domestic'* issues like narcotics interdiction and 
anti-terrorism. 

III. The New Moral Debate 

As Martin Luther instructs us in his Small Catechism, we should always try to 
put the best construction on things: so let us assume that such political leadership 
emerges, and that a new consensus on the inescapability of an active American 
leadership role in world politics and economics becomes the political-cultural 
baseline for policymaking. Remembering what was said above about 
Chesterton's adage and the need for the policy-maker to take it seriously, what 
will be some of the moral issues that the low-intensity conflict planner will have 
to confront in the 1 990s? 

Here we return to the classic categories of the just war tradition. The jtis in 
hello principle of discrimination (and its prohibition of the direct targeting of 
noncombatants) is, at one and the same time, the just war norm that virtually all 
reflective people intuitively grasp and one of the more difficult norms to observe 
in low-intensity conflict situations. This is particularly true in counterinsurgency 
operations, where the insurgent forces typically hide within the indigenous 
population (like fish in the sea, in Mao Tse-tung's famous metaphor) and not 
infrequently use the indigenous civilian population as defensive shields of one 
sort or another. But similar difficulties present themselves in anti-terrorism and 
counter-terrorism operations, as the U.S. experience in attacking Libya and 
the experience of the State of Israel in militarily confronting Palestinian and 
Hezbollah terrorism readily attest. 

The just war panel will doubtless go into the refinement of the principle of 
discrimination in light of these distinctive circumstances. So let me simply say 
here that, if our concern in low-intensity conflict operations is both to do the 
right thing and to have the support of the American people in the doing of that, 
great care must be taken to resist the temptation to abandon the principle of 
non-combatant immunity because of the enemy's perfidious use (and abuse) of 
the civilian population. 

Americans understand, as the just war tradition understands, that there are 
going to be unintentional civilian casualties in war: that is one of the reasons why 
war inevitably carries with it an element of moral tragedy, no matter how noble 
the cause. But Americans also want the principle of non-combatant immunity 
to remain intact. Nor should we think that Americans are incapable of thinking 
in rather complex terms about these issues. The country is able to understand 
that the commander on the scene often has to make excruciatingly difficult 
choices at those points at which scrupulous observance of the principle of 
non-combatant immunity is in tension with the commander's moral respon- 
sibility for the safety of his own forces. But that understanding has to be brought 



Weigel 257 

to the surface by the political and military leadership in its public presentation of 
the situation in question. [That was done, I would argue, in Desert Storm, both 
in terms of reporting the rules of engagement during the air war and the 
consequent (and risky) return of unexpended ordnance when target recognition 
was below minimum requirements, and in the discussion of the bombing of the 
Iraqi command center/bunker/shelter in Baghdad.] 

At a more fundamental level of the debate, and looking once again to the 
classic categories of the just war tradition, the most significant public moral 
argument about possible future low-intensity conflict scenarios and operations is 
likely to be focused on the orienting^Mi ad helium norm ofjust cause. The outlines 
of this debate began to emerge during the argument between August 2, 1990 
and January 16, 1991. In a post-Cold War world, what constitutes a morally 
acceptable casus bellft A cross-border invasion in violation of the bedrock principle 
of sovereignty? Massive and flagrant human rights abuses? The threat posed by 
Iraq's efforts to obtain weapons of mass destruction and the means to project 
them far beyond its borders? The threat to the international economy posed by 
the possibility of Iraqi control of over 40% of the world's proven oil reserves? 
The instability and danger to world peace that would inevitably follow from an 
Arab Middle East dominated by Saddam Hussein? All of the above? Some of the 
above? None of the above? 

On this matter of "just cause," the classic tradition taught that one or more 
of three conditions had to be met for the criterion to have been satisfied: defense 
against attack, punishment of evil, or the recovery of something wrongly taken. 
Contemporary just war thinking has tended to reduce these to "defense against 
attack," although, as Professor Johnson points out, the other two conditions have 
not simply disappeared but "have been subsumed within a gradually broadened 
concept of defense that allows retaliation for an attack launched and completed 
(punishment of evil) and defines wrongful occupation of territory as a state of 
Continuing' armed attack." Still, the U.S. Catholic bishops' commentary during 
the Gulf crisis debate stressed that the only possible casus belli in that situation was 
the cross-border invasion and occupation of Kuwait. Even more comprehen- 
sively, and insofar as one can successfully parse the complex signals coming from 
various parts of the Holy See over the past eighteen months, the Vatican (while 
insisting that it has not become pacifist in its basic moral reading of war and peace) 
does seem to have reduced the components of casus belli to a narrow construal 
of "defense against an attack already launched." 

Here, on this matter of the substantive components of "just cause," is precisely 
where a public moral argument needs to be engaged, and with a very careful eye 
to the empirical evidence on the likely future of international conflict. Consider 
three hypothetical scenarios for U.S. military action in the 1990s under the 
low-intensity conflict rubric: nuclear non-proliferation, counter-terrorism, and 
humanitarian intervention in the case of massive human rights abuse. 



258 Legal & Moral Constraints on Low-Intensity Conflict 

1 . Perhaps the most serious threat to security in the post-Cold War world 
arises from the intersection of three distinctively modern phenomena: crazy States 
(Libya, Iraq, Iran, etc.) + weapons of mass destruction + ballistic missile 
capability. This lethal equation puts great stress on those who wish to define a 
just casus belli as simply "defense against an attack already launched" — and 
precisely because of the "crazy State'* factor. No morally serious just war analyst 
would defend a preemptive strike on the French force defrappe or on Britain's 
nuclear submarine pens. Why? Because we have confidence in the regimes that 
have launch control over those nuclear weapons. We have no such confidence 
(to put it gendy) in the leadership of Libya, Iraq, or Iran. How, precisely, does 
this effect the moral equation? 

I would argue that our knowledge of the intentions of the leaders of such 
regimes has to be weighed carefully into the moral calculus. Thus the issue is not 
just one of capabilities. It is capabilities plus intentions, measured against a calculus 
of relative dangers and consequent American responsibilities. Preemptive action 
runs certain risks, to be sure. But is there not a grave moral responsibility assumed 
by those who would risk massive civilian casualties, and massive regional 
destabilization, by leaving a man like Saddam Hussein with an intact nuclear 
capability? 

2. Similar questions arise when one faces the question of preemptive action 
against terrorists. There is something inherendy implausible about the moral 
weight of the claim that one can only act militarily against terrorists in "defense 
against an attack already launched." The tactics of hit-and-run (or hide-the- 
bomb-in-the-suitcase-and-run) are the essence of terrorism, which has an 
essentially political goal rather than the goal of territorial occupation that we 
associate with the classic cross-border attack. Our intuitive sense that this is too 
narrow a concept of "just cause" should lead us to consider the possibility of a 
careful expansion of the "just cause" criteria. Were this to be done, I should not 
think it impossible to refine our concept of "just cause" to include (proportionate 
and discriminate) pre-emptive action against terrorist capabilities — to prevent the 
deaths of innocents on a large scale, and to enforce some minimum ground rules 
of acceptable international behavior in an inescapably interdependent world. But 
we have to do that refining in public: and in this case the "public" is the 
international community as well as the American body politic. And we have to 
do it in such a way as to prevent a general erosion of the moral-cultural boundaries 
that the just war tradition has laid down for centuries. 

3. Perhaps the hardest case under "just cause" in the post-Cold War world 
has to do with situations in which human rights are being massively and flagrantly 
abused, and there seems to be no indigenous force capable of ousting the brutal 
regime committing those abuses. 

It should be said here (and the same caution applies to the non-proliferation 
and counter-terrorism scenarios as well) that one should not lightly erode the 



Weigel 259 

taboos surrounding the principle of sovereignty. The principle evolved at the 
Peace of Westphalia, after all, in an effort to prevent Europe from degenerating 
into a continental free-fire zone with ecclesiastical approbation for the sundry 
combatants. Tampering with that principle should not be done blithely, for in 
international politics as well as in personal life, there is always the risk of letting 
loose seven devils worse than the first. 

In the just war tradition as I understand it, and in modern Catholic moral 
theology (in the exegesis of which I may have, as the lawyers say, some 
"standing"), the principle of sovereignty has never been understood to have 
absolute value: which is to say that the norm of the inviolability of sovereignty 
was never understood as an exceptionless norm. But it was understood to be an 
important norm, and the situations in which it could be overridden had to be 
grave indeed. All in all, the principle of sovereignty has served the world rather 
well, and if it is taken perhaps a bit too absolutely in modern international law, 
then it is probably better to err on the side of caution than to risk the dissolution 
of the principle altogether. 

On the other hand, consider this scenario: One of the new democracies of 
eastern Europe implodes under economic and social pressures, and a fas- 
cist/nationalist dictatorship emerges. The dictatorship attempts to consolidate its 
power by persecuting minority group X, which had done reasonably well during 
the economic restructuring that followed the communist crack-up. The persecu- 
tion includes the whole range of repressive evils: discriminatory laws, penal 
camps, torture, executions. There is even the possibility of genocide. Are we to 
say that the international community — or, to sharpen the issue even more 
directly, the United States, perhaps in conjunction with regional allies — has no 
recourse other than diplomatic pressure and economic sanctions to stop the 
killing? On the other hand, how does an American President explain to American 
parents, at the funeral, that their son had to be put in harm's way for the sake of 
achieving a humanitarian good in a faraway land which posed no threat to our 
national security? 

There are no simple answers — moral answers or political answers — to these 
dilemmas. It cannot be the case that the United States is under a moral obligation 
to intervene militarily in every situation in which human rights are being 
systematically and brutally abused. On the other hand, and in situations in which 
there has been no cross-border violation of sovereignty, can the "human rights 
criterion'* ever push the calculus of "just cause" to fulfillment? What obligations 
do we incur to help stabilize the future of the country in question, having 
removed the abusive government? 

Perhaps here is where the discussion of national low-intensity conflict and 
special operations capabilities bumps up against the question of international or 
regional interposition of forces. For it does seem as if there is not so great a breach 
of the principle of sovereignty if military action is taken by a regional force or 



260 Legal & Moral Constraints on Low-Intensity Conflict 

international force (or, as in the case of certain actions in the old French West 
Africa, by the former colonial power). But whether we are thinking of unilateral 
or multilateral intervention, we have to think through more carefully, and as a 
matter of public moral argument, the question of when, if ever, the gross 
brutalization of innocent and defenseless people constitutes a legitimate causus 
belli: which is to say, when, if ever, are we morally justified in overriding the 
principle of sovereignty and using military force as a means of humanitarian 
assistance. 

In terms of gauging the public temperature on low-intensity conflict matters, 
I would guess that there would be considerable public support (much of which 
would show an impressive level of moral sophistication) for the proportionate 
and discriminate use of U.S. military force as an "energetic" means of enforcing 
nuclear non-proliferation: especially if it were clearly understood that other 
means of redress had been tried and had failed, and that our action had the support 
of the saner elements in the international community. I should think that the 
same general approbation would meet the preemptive use of low-intensity 
conflict and/or special operations capabilities against known terrorists and 
terrorist facilities. I am less persuaded that the country would support an extensive 
use of American military force in situations where there is no direct threat to 
American interests but in which grave human rights abuses are being systemati- 
cally perpetrated. Would the American public support the use of international 
forces, possibly including U.S. forces, in such circumstances? Perhaps. 

IV. Problems in the High Culture (So To Speak) 

If the American people have shown a generally impressive ability to calibrate 
the moral and political arguments involved in low-intensity conflict (or in 
conventional wars, such as the Gulf War), the same cannot be said for what are 
often thought of as the "teaching centers" of our culture: our religious institu- 
tions, our institutions of higher education, and the mass media. The continuing 
intellectual and moral distress in these arenas will doubtless have an effect on 
the "constraints" under which low-intensity conflict policy is developed and 
executed. 

On the question of the religious institutions: the hard fact is that the just war 
tradition as a method of moral reasoning is quite probably taken more seriously 
at the service academies and the war colleges than in our largest seminaries. 
During the Gulf crisis, the leadership of mainline/oldline Protestantism, as 
exemplified by the National Council of Churches (NCC-USA), showed itself 
to be functionally pacifist. This was not the pacifism of high moral principle. 
Rather it was a political pacifism born of the conviction that American military 
power can serve no good end in world politics. One need not look for much 
leadership in sorting out the moral questions sketched above from these quarters. 



Weigel 261 

But since these are dying institutions (demographically speaking), their impact 
on the public argument is likely to be minimal in any case. 

The Gulf crisis was the occasion for the growing part of American Protestan- 
tism — the "evangelical" world which is itself a complex amalgam of doctrinally 
conservative mainline dissidents, fundamentalists, and charismatics — to enter the 
foreign policy debate on explicidy just war grounds for perhaps the first time. 
The key group here is what we might call, broadly, the "conservatives": the 
Southern Baptist Convention, and the evangelical (and doctrinally serious) 
remnants of the Presbyterian, Methodist, and Episcopal churches. There is 
considerable agreement among these parties on several points: that the quietism 
that marked the evangelical churches from the days of the Scopes trial to the 
mid-1970s is inappropriate for Christians; that the Christian church has public 
obligations larger than its obligation to help form the consciences of its con- 
gregants; and that there is no developed evangelical social ethic capable of 
sustaining this new public engagement in an intellectually serious way. Thus, 
during the Gulf crisis, one found the "conservatives" beginning to grapple with 
the just war tradition as a moral template for thinking about public policy, in 
active conversation with Catholic and secular just war scholars. This is a 
development of potentially historic importance for the reinvigoration of just war 
thinking in American Christianity, given the fact that conservative or evangelical 
Protestantism has supplanted the traditional mainline/oldline institutions as the 
center of demographic gravity in the churches of the Reformation in the United 
States. If followed through, this new evangelical Protestant interest in the just 
war tradition would certainly play a significant role in shaping the moral-cultural 
environment in which American policymakers operate. 

The future of the Catholic debate is difficult to discern. The Catholic bishops' 
record during the Gulf crisis was considerably better than that of their NCC-USA 
conferees. The bishops' congressional testimony was built around the classic just 
war criteria, and in that respect, the bishops helped deepen the public moral 
argument. [They most certainly did not, as some of them insisted, introduce the 
moral element to the wider public debate; the moral argument was alive and 
(reasonably) well from the outset, as anyone with a car radio and the patience to 
listen to talk shows could readily attest.] On the other hand, the bishops' 
testimony was also driven in part by certain readings of the political situation in 
the Middle East that proved to be sadly mistaken: a pattern of analysis that was 
sadly reminiscent of the bishops' fundamental misreading of the politics of U.S./ 
Soviet relations in the 1980s. 

In the short term, and in the wake of Desert Storm, the future of the American 
Catholic debate will probably center on two issues, one of which has serious 
implications for low-intensity conflict planning. There has been much debate in 
Catholic circles since Desert Storm about the degree to which U.S. military 
policy in the Gulf observed the principle of proportionality; the focus here tends 



262 Legal & Moral Constraints on Low-Intensity Conflict 

to be on the relatively high numbers of Iraqi combat deaths and on the damage done 
by the allied air campaign to the economic and technical infrastructure of Iraq. Those 
are grave questions with important implications for the future of conventional war, 
but they do not bear direcdy on low-intensity conflict. On the other hand, the 
post-Gulf Catholic debate about the components of just cause certainly will shape 
the low-intensity conflict argument in the future. The bishops' tendency seems to 
be to hold the line, so to speak, at cross-border attacks; there is little evidence that 
non-proliferation, or anti-terrorism, or humanitarian assistance will be defended by 
the United States Catholic Conference as legitimate casus belli. That inclination will 
be reinforced, or so it would seem, by the Vatican's narrowing of the boundaries of 
just cause. Yet, as I argued above, there really are serious, and in many respects 
unavoidable, issues to be engaged here. We may thus be heading for a period of 
some brisk intellectual confrontation in Catholic circles. 

As for the American academy, the dreary stories of the impact of "political 
correctness" on our campuses are too familiar to have to be rehearsed here. That 
the campuses will provide recruits for any possible movement that seeks to restrict 
U.S. low-intensity conflict capabilities seems wholly predictable. But whether 
that movement will have any real political impact seems a more dubious 
proposition, at least in light of the Desert Shield/Desert Storm experience: for 
here, as in recent elections, students often proved politically wiser than their 
presumed (and tenured) betters. Of more immediate concern than these potential 
agitations, though, is the state of international relations theory in American higher 
education. Read through the scholarly and technical literature here, and you may 
well be reminded of Newton Minow's famous description of television as a "vast 
wasteland." We are living in a revolutionary period, in which the power of ideas 
and passions to shape events — sometimes in wholly unexpected ways — has 
been decisively demonstrated in venues ranging from east Asia to Kiev. And yet 
we find ourselves burdened by a professoriate that stopped taking political ideas 
and passions seriously two generations ago. Think of the vast amount of energy 
(and money, and ink) expended in 1990-1991 on the so-called "Grand Bargain" 
devised by the brahmins at Harvard's Kennedy School of Government: the deal 
in which the United States and its western allies, in return for major Soviet 
military cut-backs, would agree to finance the reform communism of Mikhail 
Gorbachev. Somehow, amidst all the equations, the basic political fact of the 
situation never got taken seriously: that what the people of the Soviet Union 
wanted was to get rid of communism, reform or otherwise, and sooner rather 
than later. 

A similar intellectual paralysis pervades much of the establishment foreign 
policy community. Some months ago, editors at Foreign Affairs were lamenting, 
to the New York Times correspondent Thomas Friedman, that no one had yet 
sent them the post-Cold War equivalent of George Kennan's famous "Mr. X" 
article, which provided the doctrinal foundation for containment and the Cold 



Weigel 263 

War. The real question, I submit, and given the current, sad, disoriented state of 
the received wisdom in the foreign policy establishment, is whether the editors 
would recognize such an article if it came over the transom. 

Thus I fear that we are headed for a period of intellectual instability and 
fragmentation in our foreign policy thinking. The public debate, such as it is, 
will likely be ad hoc and case-by-case, rather than conducted against the horizon 
of a broadly agreed-upon doctrine. This does not rule out the possibility of a 
national consensus emerging on an low-intensity conflict policy. It does suggest 
that any such policy is likely to be rather limited in its vision. 

Finally, there is the fourth estate. It had a bad war in the Gulf. When reporters 
become targets of satire on "Saturday Night Live" ("Tell us, general, if there was 
one secret you wouldn't want the Iraqis to know, what would it be?"), something 
of the post- Watergate aura of the media has dimmed. And yet there seems to have 
been little self-examination in the prestige press after the GulfWar. Rather, the focus 
has been on challenging the press access rules that were enforced during that conflict. 
Moreover, in the aftermath of the Soviet crack-up, the overwhelming majority of 
media attention to the Defense Department has been focused on, yes, the budget 
— which is to say, on what is going to get cut. I have discerned very little interest 
to date in the broader questions of post-Cold War strategy, including low-intensity 
conflict strategy: despite the fact that the resolution of these questions would be 
necessary for rational force structuring and weapons procurement planning. 

This is not, I should say, wholly the media's fault; it surely has something to do 
with the failures of political leadership noted above. And that fact, combined with 
what seems to have been widespread public support for the ground rules set for the 
press by the Department of Defense during Desert Storm, suggests again that there 
are ways around a potential media "problem" with low-intensity conflict planning 
and programs: if the political leadership has the wit and will to assert itself. 

V. Concluding (and Decidedly Unscientific) Postscript 

The collapse of communism brought to an end what can be construed as a 
two hundred year-old fantasy in the Western world, the attempt to remake (and 
perfect) the human condition through politics: an enterprise that began with 
Rousseau's speculations in pre-revolutionary France and that led, along a 
complex historical path that proved the bitter wisdom of Richard Weaver's 
observation that "ideas have consequences," to Auschwitz-Birkenau and the 
Gulag. In the aftermath of this struggle to re-assert the priority of the individual 
human being, culture, and society over the polity (which, in the West, included 
the struggle to resist more benign forms of governmentally-sanctioned social 
engineering), we may well be headed, at least in the developed world, for what 
we might call a "post-political" era. That shift in the historical templates has been 
reinforced by our own domestic experience: many of the great questions on our 



264 Legal & Moral Constraints on Low-Intensity Conflict 

national social agenda — crime, drugs, welfare reform, the urban underclass, 
education — are increasingly understood, and by liberals as well as conservatives, 
to be primarily questions of character, in the addressing of which government is 
a singularly clumsy and singularly inefficient actor. Thus, the end of the 
Rousseau-inspired tyranny of the political in grand world politics has intersected 
with a rediscovery of the crucial importance of the virtues in a democratic 
republic and with an era of budgetary restraint to produce, as I say, a "post-politi- 
cal" era in American public life. 

There is much in this that we should welcome. The danger, as I see it, is that 
our political leadership, reinforced by the ideological convictions and trendiness 
of both the press and the academy, will conclude that, under these circumstances, 
a gentle isolationism really is the way to go. And that would be a mistake. 

It would be a mistake because the world is inextricably "interdependent'* — 
or at least inextricably interconnected — and any attempt to withdraw from it 
will inevitably make the task of tending our own republican garden even more 
difficult. It would be a mistake because we do have, at the end of this bloodiest 
of centuries, the opportunity to set a pattern for international relations that is 
something other than Hobbes's war of all against all. And it would be a mistake 
because it would be morally demeaning: for nations, as well as for individuals, 
to set themselves up as islands, entirely unto themselves, is to choose for a crabbed 
and narrow conception of their responsibilities. 

Should we summon the will to assume the leadership in world affairs that 
could be ours, a careful public moral exploration of the problems and prospects 
of low-intensity conflict will be essential — for these are precisely the kinds of 
conflicts that seem likely to dominate the post-Cold War international arena. 
But that exploration will not take place at the level of seriousness it deserves 
unless and until the prior question — America First, or America first among the 
leaders of the world? — is settled, and in favor of the latter understanding of who 
we are and what we should be. That, and nothing less than that, is the key issue 
of "constraint" that low-intensity conflict planners face in the next period. 

Notes 

♦GEORGE WEIGEL, a Roman Catholic theologian, is President of the Ethics and Public Policy Center in 
Washington. 

1. Weigel, War, Peace, and the Christian Conscience, in JUST WAR AND THE GULF WAR (Johnson and 
Weigel eds. 1991). 

2. Buchanan, America First: A Foreign Policy jor the Rest of Us, in PJB FROM THE RIGHT (September 1991). 

3. President Bush did, in the main, do an exceptionally fine job of explaining what was at stake in the 
Gulf crisis, and in defining the nation's short-term interests and goals in resisting Iraqi aggression. But there 
was little attempt to relate this crisis to the larger scheme of things in the post-Cold War world. Thus the 
emblematic phrase for the administration's putative grand design and its doctrinal replacement for "contain- 
ment" — the "new world order" — remained essentially without content. 

4. Johnson, The Just War Tradition and the American Military, in JUST WAR AND THE GULF WAR at 22 
(Johnson and Weigel eds. 1991). 



Chapter X 
American Strategic Culture in Small Wars 



by 
Carnes Lord* 



That the United States has had great difficulty bringing its military estab- 
lishment effectively to bear in limited conflict situations is hardly a secret. 
From Vietnam in the 1960's through Grenada and Lebanon in the early 1980's 
to El Salvador in very recent years, the track record of U.S. involvement in 
contingency operations as well as protracted revolutionary warfare in the less 
developed world is spotty at best, with serious flaws apparent even in victory. In 
general, the United States has reaped a disappointing return in such conflicts from 
what have often been major investments of its material, moral and political 
resources. 

Clearly, a number of different factors work together to constrain the perfor- 
mance of the American government in low-intensity or limited warfare environ- 
ments. At the most general and fundamental level is what one may conveniently 
call "American political culture". Not only is our nation formally a democracy; 
Americans are a deeply democratic people. Democratic or egalitarian attitudes, 
and the manners and morals that flow from them, have a great deal to do with 
the way Americans view governments in the less developed world and the way 
they interact with individuals in less developed societies. While in some respects 
a great strength, this has often acted as a severe limitation. But other aspects of 
our political culture are also of importance in this connection. Beyond 
democracy, America is heir to powerful traditions of political liberalism — 
limited government and the rule of law — and of religious enthusiasm and 
moralism. Finally, Americans are a pragmatic people, with a tendency to seek 
technical solutions to isolated problems and a preoccupation with the here and 
now at the expense both of the past and the future. This means, among other 
things, that Americans tend to lack the historical memory that is critical for 
understanding other cultures, as well as the future orientation and holistic 
thinking that are the preconditions for strategy. 

American political culture affects the activities of the U.S. government in a 
number of ways. In the first place, it is absorbed by government officials from 
the various institutions of the culture — schools, universities, churches, films, 
television, and the press. Secondly, it acts on them through the medium of public 



266 Legal & Moral Constraints on Low-Intensity Conflict 

opinion, which tends to define the outer boundaries not only of what the 
government can do but often of what it can consider or discuss. Finally, it acts 
on them in a more direct and authoritative way through the U.S. Congress and 
the legislative instruments at its disposal. 

The extent to which American involvement in small wars has been con- 
strained by public opinion and congressional fiat in the years since Vietnam 
scarcely needs to be emphasized. The antiwar movement aroused by the 
American debacle in Vietnam shaped the political consciousness of a generation 
of Americans and ultimately dethroned two Presidents. Its effects are still palpable 
today in our elite cultural institutions, in spite of what would seem to be a 
growing acceptance in popular opinion throughout the country of the employ- 
ment of American military power abroad. As for Congress, it mounted in the 
aftermath of Vietnam what can only be described as a systematic assault on the 
ability of the President and the national security bureaucracy to engage effectively 
in low-intensity conflict. The War Powers Act, various legislative constraints on 
security assistance, and congressional oversight of covert action are perhaps the 
most egregious results of this effort. While the Executive branch has managed to 
resist or ignore some of them, it certainly remains seriously encumbered with 
such legal and quasi-legal baggage. Nor does there seem much prospect for relief, 
given the continuing partisan divide between Legislative and Executive branches. 

Nevertheless, it can be questioned whether these factors by themselves are as 
decisive as is often assumed in limiting or crippling US Government performance 
in the low-intensity arena. At least as important, it can be argued, are those 
constraints imposed by the Executive branch on itself. While they are rooted in 
and reflect aspects of the wider political culture, these constraints derive largely 
from the nature of the national security bureaucracy and of national security 
decision-making as they have evolved in the United States since World War II, 
and especially over the last three decades. Those constraints — an interrelated 
nexus of attitudes, habits, traditions, and standard operating procedures — form 
what can usefully be labelled "strategic culture." 

Strategic culture is the product of a number of very disparate influences. 
Foremost among them may be said to be the following: the geopolitical setting 
in which a nation finds itself; its international relationships; its political culture 
and social structure; its military culture — military history, traditions, and 
education; military and security organizations and their relationship to civilian 
authority; and weapons and technology. Strategic culture expresses itself in 
matters as diverse as strategic doctrine, personnel practices, command and control 
arrangements, and weapons procurement. Offensive orientation, reliance on 
firepower as distinct from maneuver, reliance on surprise and deception; such 
characteristics of a military establishment usually reflect its key strategic-cultural 
themes. 



Lord 267 

Elusive as the notion of strategic culture may seem to be, the phenomena it 
tries to capture are real enough, and can prove powerful and persisting in their 
effects. At the same time, it is important not to overstate the staying power of 
strategic-cultural attitudes and practices. Traumatic events — particularly military 
defeat — can reshape a nation's strategic culture very quickly. Organizational 
reform can also have a radical impact in a reasonably brief period of time. 
Consider, for example, the apparent impact of the (relatively modest) congres- 
sionally-mandated reform of the Organization of the Joint Chiefs of Staffin 1986 
on the planning and conduct of America's military campaigns of the last several 
years. One also needs to be careful to avoid a deterministic view of the operation 
of strategic culture. Individuals and individual leadership really can play a decisive 
role in overcoming cultural patterns in organizations and, indeed, entire nations. 
Strong individuals at middle levels of military organizations can have a powerful 
influence; on occasion they are able to create identifiable and persisting subcul- 
tures (consider, for example, the case of Adm. Hyman Rickover and the nuclear 
Navy). 

How does strategic culture affect American performance in low-intensity 
conflict or small wars? The fundamental problem is obvious and massive. What 
distinguishes low-intensity conflict from other forms of conflict is not the scale 
of violence as such but the fact that violence is embedded in a political context 
that directly shapes and constrains it. As Clausewitz teaches, all war is the 
continuation of politics by other means; low-intensity warfare is distinguished 
from other warfare by the extent to which politics dictates not merely strategy 
but military operations and even tactics. In low-intensity warfare, non-military 
instrumentalities of national power may have an equal or even greater role to 
play than military forces. What this means in practice is either that military forces 
must perform essentially non-military functions, or that special means must be 
devised to coordinate and integrate military forces with non-military agencies of 
government. Either course is apt to be culturally stressing for any military 
establishment, but all the more so for that of the United States. In addition to its 
long-standing traditions of military professionalism and civilian control of 
military activities, the American military (and national security establishment 
generally) tends to view war and peace as sharply delineated activities rather than 
as a continuum. The use of force tends to be seen as a last resort, a response to 
the failure of politics or diplomacy rather than as an instrument of politics or 
diplomacy. 

Additionally, the American national security establishment as a whole is not 
structured in a way that facilitates coordination between the armed forces and 
other agencies of government, and moral-cultural attitudes in the civilian 
agencies tend to be more hostile toward the use of force than is the case in many 
countries. For a number of reasons relating to its constitutional and political 
history, the U.S. government lacks a powerful center, at least during periods of 



268 Legal & Moral Constraints on Low-Intensity Conflict 

relative peace or in the absence of a major external threat. Key agencies such as 
the Departments of State, Defense, and Treasury and the Central Intelligence 
Agency enjoy considerable autonomy. In recent years, Congress* challenge to 
Presidential discretion and prerogative in national security affairs has led to a 
further weakening of executive control, particularly of the intelligence com- 
munity. All of this might be less significant if there existed in the United States 
a cohesive political class with traditions of service to the nation's military and 
security forces and an instinctive understanding of the requirements of national 
strategy, of the sort that ran the British and French Empires in the nineteenth 
century or the Soviet Empire in the twentieth. As a general rule, however, 
America's political elite has shown little knowledge of or interest in "imperial 
policing," as the British used to describe low-intensity warfare. 

At senior levels of the U.S. Government, in any event, there has been little 
effort to develop doctrines or mechanisms that might provide a strategic 
framework for the conduct of small wars. In a surprising reversal of previous 
patterns, what interest there has been in this area has come from the Congress. 
The Low- Intensity Conflict Board, a subcabinet-level coordinating mechanism 
Congress asked to have established in the White House in its military reform 
legislation of 1986, remains essentially a dead letter. Although forced by Congress 
to accept the creation of a unified command for special operations forces and a 
new bureau in the Department of Defense for special operations and low-inten- 
sity conflict, the Executive branch at the highest levels has consistently opposed 
institutional reform or other fundamental measures to improve either its strategic 
competence or its operational capabilities in the low-intensity arena. This clearly 
reflects strong resistance from the relevant bureaucracies, particularly the Depart- 
ment of State, but to some degree also the defense establishment as a whole. 

What problems does all this create for the strategic direction of small wars? In 
the first place, and probably most importantly, military contingency planning 
remains totally divorced from the civilian national security agencies, and subject 
only to very restrictive review by civilian officials within the Department of 
Defense. This has consistently caused difficulties in the area of U.S. dealings with 
the political leadership of the countries involved (notably the establishment of 
the Endara government in Panama; but consider also the handling of the 
Governor General of Grenada during Operation Urgent Fury). It has also led to 
consistent neglect of civil-military planning issues both during and after combat 
operations. The U.S. did not adequately anticipate the problem of breakdown 
of law and order in Panama City during Operation Just Cause, or plan for the 
reconstitution of Panama's security forces, political system and economy (the 
same failure occurred in Grenada). In the second place, U.S. intelligence 
capabilities are not well configured to support low-intensity warfare. This is 
particularly true of short-notice contingency operations (the absence of adequate 
maps in Grenada has been widely remarked), but remains a problem even in 



Lord 269 

protracted conflicts such as El Salvador, due to an overemphasis on sophisticated 
technical collection assets as opposed to the human intelligence networks that 
are critical to the successful conduct of revolutionary war. Third, the process of 
planning for security assistance to friendly governments suffers not only from 
congressional micromanagement, but from persistent disconnects between diplo- 
matic and military requirements and an excess of bureaucratization. 

Because low-intensity conflict (especially in the form of protracted revolu- 
tionary war) is neither peace nor war in the ordinary sense of those terms, no 
one is clearly in charge. Absent strong direction from the national level, there 
are essentially two ways of coping with such situations. The first is to put the 
military in charge but force it to perform many nonmilitary or non-combat 
functions (the French in Algeria). The second is to create ad hoc, hybrid 
civil-nulitary structures under proconsular civilian leadership (the British in 
Malaya). In spite of some experimentation with the second model (the Civil 
Operations and Revolutionary Development Support-CORDS— program) in 
Vietnam, the United States has tended toward the first alternative in practice, 
although as a matter of policy it has generally understated the military role and 
overstated the contributions of other agencies to the conduct of low-intensity 
operations. The first model has the advantage of simplicity and of maintaining a 
military discipline and spirit in an environment that too easily tolerates bureau- 
cratic business as usual. It has the disadvantage that it asks more from soldiers than 
they are customarily able to perform, and threatens to distract them from their 
more properly military missions. Which model is chosen has much to do with 
the prevailing military culture of a society. 

The United States military as it exists today is very largely a product of its 
decades-long confrontation with the Soviet Union. It is probably fair to say that 
the Soviet threat as seen by the U.S. military establishment was fundamentally a 
military threat, one posed either direcdy to the United States by Soviet strategic 
nuclear forces, or to America's allies in Europe and Asia by Soviet conventional 
forces. (Consider by contrast the French military, which in the 1950*s came to 
see "revolutionary war" in the less developed world as the central threat posed 
by Soviet Communism and revised its military doctrine to reflect this perception.) 
Accordingly, the basic mission of U.S. military forces has been seen as the 
deterrence of, or defense against, the Soviet threat so understood; other missions, 
including the containment of Soviet imperial expansion, have been considered 
of a strictly secondary order. This may well have been an entirely proper ordering 
of national priorities, but it has clearly created and reinforced a military culture 
oriented to major weapons systems, high technology, and large (not to say 
apocalyptic) wars, to the neglect of the non-military dimensions of international 
conflict. 

If this analysis is correct, it appears to follow that a dominant role for the 
American military in small wars is to be neither desired nor expected. Several 



270 Legal & Moral Constraints on Low-Intensity Conflict 

other factors, however, need to be considered. Contrary to a certain popular (or 
more accurately, elite) stereotype, today's officer class in the United States is 
better and more broadly educated than at any time in the past. In terms of general 
understanding of the international political-military environment, it can by no 
means be assumed that military officers are less well-equipped than, say, foreign 
service officers. Moreover, the military culture has unique advantages in terms 
of the planning and execution of highly complex operations. Habitual attention 
to the relation between strategy and resources, recognition of the importance of 
doctrine, discipline in execution, accountability: all of these features sharply 
distinguish the military from civilian national security organizations and are not 
easily replicated outside a military organizational context. 

It is undoubtedly unrealistic to expect today's military to accept full respon- 
sibility for the small wars mission. There is still a powerful current of feeling 
within the military, deriving principally from the Vietnam experience, which 
regards low-intensity warfare as a political albatross — a high-risk enterprise that 
typically lacks genuine national commitment and jeopardizes the institutional 
standing of the defense establishment as a whole. Without revisiting the historical 
debate over responsibility for the American defeat in Vietnam, it seems fair to 
say that while there is certainly justification for the view that the nation's political 
leadership blundered badly in that conflict, there were also serious military 
shortcomings that can be traced to a general failure to appreciate the nature of 
low-intensity warfare (which is not to say that Vietnam was typical of the genre). 
More recent experience — the ten year conflict in El Salvador — shows that the 
military has made real progress in correcting those shortcomings, even in the 
absence of a major national commitment or firm strategic direction from 
Washington; it is at least arguable that the U.S. could have achieved substantially 
better results by relatively modest improvements in its military (or security-re- 
lated) effort on the ground. It is not unreasonable to expect the U.S. military to 
digest these lessons over time and take a more positive attitude toward the small 
wars mission. After all, the United States is very unlikely ever again to involve 
itself directly in a Vietnam-like counterinsurgency situation; at the same time, it 
is becoming increasingly difficult to justify structuring the U.S. military estab- 
lishment around exclusively large-war missions. The case of Panama shows how 
a small war can be not only low cost but high payoff both in a strategic and a 
political sense. Even a protracted small war need not raise the specter of Vietnam 
if rules of engagement are reasonable, strategic objectives are understandable and 
attainable, costs are contained, and the supported government is politically 
palatable. Improved coordination of the military and non-military instruments 
of national power will remain the key to improved American performance in 
small wars. As suggested above, perhaps the most promising approach is simply 
to expand the military's responsibility in areas usually considered peripheral to 
its primary war-fighting mission. The most important such areas are intelligence, 



Lord 271 

information, civil administration or civil affairs, and security assistance. Experience 
indicates that U.S. civilian organizations are unlikely to provide adequate support 
for these functions in low-intensity operations; at the same time, though typically 
neglected by military organizations, they can and have been effectively performed 
by them. In its recent campaigns in Panama and the Persian Gulf, the American 
military turned in highly creditable performances in the areas of psychological 
operations and civil affairs, in spite of some problems in interagency coordination. 
Notwithstanding a recent failed experiment in the area of military human 
intelligence (HUMINT) collection, it can be argued that such a capability 
remains an important desideratum. As regards security assistance, there is at least 
a respectable case to be made for removing primary responsibility for it from the 
State Department and giving it to the Department of Defense. 

A few remarks need to be made concerning the changing face of low-intensity 
warfare in the post-Soviet world. The new international situation clearly alters 
American requirements in this area in fundamental ways. The delinkage of small 
wars from Soviet global ambitions that has been taking place over the last several 
years means that the U.S. will be worrying less about deep involvement in 
protracted revolutionary warfare in the developing world. In general, the military 
dimensions of U.S. involvement in such conflicts will probably decrease, while 
other dimensions (notably law-enforcement) will become more prominent. As 
a consequence of this, the center of gravity of low-intensity warfare, properly 
speaking, will shift from insurgency/counterinsurgency to contingency opera- 
tions, both violent and otherwise. This development will provide a welcome 
opportunity to reformulate a doctrine of low-intensity conflict that more clearly 
defines the operational spectrum and distinguishes and assigns bureaucratic roles 
and missions. And it may well favor the approach suggested here of expanding 
military responsibility for key political-military missions. 

The world we are now entering holds many question marks, and is plainly 
going to force a rethinking of many of the most cherished assumptions under- 
pinning American national security policy. This kind of world is bound to have 
a corroding effect on our strategic culture — and thereby offers a unique 
opportunity to free ourselves from some of its shackles. 

*Dr. Carries Lord is a Distinguished Fellow at the National Defense University. 



Chapter XI 

Panel Discussion: Domestic 
U.S. Constraints on Low-Intensity Conflict 

RADM Bruce Harlow, Chair 



[Following the presentations by George Weigel and Carries Lord of their 
respective papers, Rear Admiral Harlow opened the floor to discussion.] 
RADM HARLOW: To allow more opportunity for comment and questions, I 
will forego a summary and open the proceeding? to interventions from the floor. 

PROF. SARKESIAN: Is there such a thing as a just revolution, as a just 
counterrevolution, or a just terrorist operation? 

MR. WEIGEL: Can there be a just revolution? Yes. Just counter-revolution? 
I'm not sure what that would mean. One of the things I should have mentioned, 
which merits some thought, is the way in which political struggle shaped the end 
of the Cold War in Central and Eastern Europe. In other words, non-military 
political action aimed at the "revolutionary overthrow of the existing regime." 
Just terrorism? No. That's off the board. Just counter-terrorism? I think 
counter-terrorism, as Bill O'Brien's new book indicates, puts the most stress of 
anything we've yet considered on the traditional just war categories because of 
the nature of the adversaries and the discrimination problem. As long as this is a 
phenomenon of our times, we're going to have to figure out a way to think 
about it in something approaching just war terms. In this matter, I'd happily defer 
to Bill. 

MR. COLLINS: The subject of assassination kept cropping up both days, and 
what I would like to do is give you all a couple of things to think about that 
might not have occurred to you before. 

U.S. policy disapproves of assassination for moral, legal and, as Carnes Lord 
said, cultural reasons, but the limits of that disapproval are very fuzzy because the 
term "assassination" has never been effectively defined. It seems to me that it's 
time to sort out that semantic mess, because, if flexibility is important for 
low-intensity conflict, we may be passing up a lot of useful opportunities. 
Strategic assassination has a potential to change the course of events dramatically; 
it can even change the course of history. 



274 Legal & Moral Constraints on Low-Intensity Conflict 

I believe, personally, that the term "assassination" should be differentiated 
from garden variety homicide and limited to selective attacks on individual 
civilians for political or social purposes. And according to that definition, killing 
chiefs of States or other key civilian officials would clearly be taboo. But 
pseudo-civilians, let's say in their role as military commanders, clearly ought to 
be legitimate targets. I'm thinking of people like Saddam Hussein. We spent a 
lot of time trying to blow this guy up with bombs. What's wrong with hitting 
him with a bullet? I really don't understand the difference. Legitimate targets 
could include senior military officers, whose deaths I would call justifiable 
homicide. I love a quote from Field Marshall Slim who used to say that "Nothing 
is better for the morale of troops than occasionally to see a dead general." 

The prime movers for military projects might be considered legitimate targets. 
I'm thinking, for example, about what would have happened it somebody had 
hit Oppenheimer or Szilard while they were trying to put the Manhattan Project 
together. What would have happened if someone had hit Hyman Rickover when 
he alone was pushing for a nuclear-powered Navy? 

If you don't like assassination, what about abduction? It's a lot harder, but it 
gets you away from the assassination prohibition. The real master of this was 
Otto Skorczeny. This guy snatched Mussolini off the top of Grand Sasso 
Mountain, which was supposedly impregnable, and spirited him away to establish 
a fascist government in exile. In 1944, the Hungarians announced their intention 
to leave the Axis. Skorczeny kidnapped the regent and Hungary stayed in the 
war until the bitter end in 1945. During the Battle of the Bulge, General 
Eisenhower was never allowed out of his quarters because we were afraid that 
Skorczeny was either going to assassinate or abduct him. 

Now, there's a flip side to all of this, obviously. Assassination and abduction 
are games that anybody can play, but only gifted players can play well. My guess 
is that if John Wilkes Booth had known it was going to take a hundred years to 
sort things out after he assassinated Lincoln, he might have thought a second 
time. So the bottom line in thinking about this particular issue is that you need 
to take a hard look at the cost-benefit ratios, and weigh them not only with 
political leaders, but also with some special operations professionals. You only 
give the word to go then, if the plan looks good from the U.S. policy standpoint. 
If that is done, it's just possible that these kinds of activities could fit within our 
moral framework. 

MS. HECKLINGER: A question then. How would you apply that to the drug 
war and what place would the principle of reciprocity have in your plans? 

MR. COLLINS: You know, I'm a good Christian but I really wouldn't have 
any compunction at all about hitting some of these drug lords. I think again that 






Panel Discussion 275 

it's a case of thinking through the risk/gain ratio. But this is also a transnational 
problem. We can't make these decisions by ourselves in most cases. 

FR. WINTERS: Can I ask Carnes to talk a little more at length about the claim 
that the Panama war was "low-cost but high-payoff"; what does that mean? 

MR. LORD: Well, that was really in the context of the argument you often 
hear, from military people in particular, that in the Vietnam War we wasted an 
incredible amount of resources and lives for a State that was not at all propor- 
tionate to it. 

In Panama, clearly, there was a much greater proportion between the 
investment that we made in the State and its strategic value. I think my point 
was that we can conduct these kinds of operations in a cost-effective and also a 
morally acceptable way so that they're politically acceptable in this country and 
constitute a strategic success, which I think Panama was. 

FR. WINTERS: Well, how do you deal with the fact it was condemned 
immediately by the OAS? In the long-term that's going to bear a cost to the 
United States. 

MR. LORD: Well, I think the regional effects were much less than many 
people thought they would be at the time. Today, I don't see any really negative 
fallout in the region. Most Latin governments pretty much, from a fairly early 
stage, accepted the action as a reasonable one. 

FR. WINTERS: Why do you say that? 

MR. LORD: That's the way I read it. I'm not a Latin American expert, but I 
think Panama failed to provoke the kind of outcry that has greeted some of our 
other Central American involvements. 

RADM HARLOW: Any other comment or question? 

PROF. FARER: George Weigel's reference to "crazy States" gives me a 
chance to underline a point I tried to make yesterday. I think the whole discussion 
of low-intensity conflict is fundamentally skewed when it assumes that States or 
groups whose positions are initially antagonistic to ours ought to be dealt with 
as permanent enemies, and that what we should worry about is the techniques 
needed to remove them as obstacles to the achievement of our objectives. 
Characterizing our opponents as crazy, which is not to suggest that there are no 
crazy regimes, is one of the ways of avoiding having to think about the question 
of whether parties who initially are our adversaries may nevertheless have claims 



276 Legal & Moral Constraints on Low-Intensity Conflict 

which we ought to think about accommodating. The nature of our discussions 
tends to treat our purposes as sacrosanct, and doesn't always take sufficient 
account of the resources of diplomacy. What is diplomacy other than an effort 
to seek out an accommodation? You may decide that the costs are not worth the 
compromise. This is just a caveat and I think it's made about as clearly as it can 
be. 

PROF. WAKIN: I'd like to speak about one of our possible responses to 
low-intensity conflict. Terrorism is a criminal act, whether it is committed by 
an individual or a State. Now, we have traditionally dealt with criminal acts by 
attempting to arrest and try the perpetrator in a court of law. If, in the process 
of apprehending the criminal, he gets killed, then that is no great loss. The way 
we deal with certain kinds of low-intensity conflict might profitably be seen as 
having more in common with criminal law enforcement than with conventional 
war. That's worth thinking about when we try to envisage the results of 
developing policies that permit the assassination of heads of State. 

MR. McNEILL: I want to get back to the distinction made within the Defense 
Department between a covert operation carried out by the intelligence com- 
munity, and a clandestine operation carried out by military assets. I was thinking 
about the hypothetical case of nuclear weapons winding up in the hands of Iran. 
Obviously, we have a choice of methods to deal with such an exigency. I was 
wondering if Mr. Weigel would say that the criteria in the just war tradition 
would be equally applicable to a covert or a clandestine operation. According to 
the documentation provided in the book Mayday, President Eisenhower decided 
that pilots of the U-2 planes would not be military. He wanted them to be 
civilians so that the Soviets could not characterize the overflight program as a 
military operation, which they might have done to justify a retaliatory response 
of a military kind. So, do you think that your just war analysis would apply to 
this intelligence operation or only to a military one? Would all the criteria apply 
to a single military operation dedicated to a particular limited goal in peacetime? 

MR. WEIGEL: If I understand the question, I think the answer is "Yes." The 
just war tradition is not in any sense a kind of moral cookie cutter in which you 
can stamp out fairly clear answers to things. The image I've used is that the just 
war tradition is far more like a conductor interpreting a symphonic score than 
an engineer reading a blueprint. I mean, the norms are the notes in the composer's 
instructions, tempo, et cetera, but the beauty of the music, or in this case the 
wisdom, is a function of the wisdom of the statesman reading the notes on the 
score, and interpreting it in a morally reflective way. 

It does not seem to me at all inappropriate to think about covert operations 
for the aims of non-proliferation according to these criteria. After all, Paul 



Panel Discussion 277 

Ramsey is the one who insisted that just war criteria are simply the criteria that 
are involved in any morally reflective use of force. They apply to policework or 
a military operation or a civilian-run intelligence operation. These criteria have 
emerged, as Professor Johnson suggested, from a history of disciplined reflection 
on the human condition. If I'm hearing you correctly, you seem to see a 
qualitatively different kind of situation in Judge Sofaer's hypothetical case from 
say, the moral analysis of the Gulf War. Why is that? 

MR. McNEILL: Well, because the analysis in your book, which I think is very 
helpful and instructive on these points, seems to cast the criteria for just war 
compliance in very broad terms that might be difficult to apply to a limited 
mission. I'm thinking of the requirements for the realization of peace and 
estimating the probabilities of success. Now, you may want to undertake a limited 
mission even if the odds are greatly against you if you think it could be very 
important. Maybe this is a mechanistic approach to the problem, but I'd like to 
know if it is warranted. 

MR. WEIGEL: Okay, I see what you are saying. The criterion of advancing 
the cause of peace is obviously not mechanistic. A wholly justifiable operation 
according to these criteria will not necessarily yield peace at the end of the 
equation. We know that's just not the way the world works. But, it is not all 
that difficult to demonstrate that the chances for peace in the world are enhanced 
by denying Iran or Hezbollah a nuclear weapon. That is not a hard case to make 
in my mind. I think what is the harder case to make, given the current state of 
reflection within the theological and philosophical worlds that pay some attention 
to this stuff, is the question of just cause. As I was saying earlier, we need to figure 
out how one carefully reverses this trend towards just cause being defined solely 
as overt, cross-border attack. How do we carefully expand that definition to take 
account of these new actors and new technologies without making the boun- 
daries so elastic that there is no serious constraint in front of us? 

RADM HARLOW: I'll take one last comment. 

PROF. JOHNSON: I would like to put in two cents worth on this question 
and then make a comment that refers to other general issues. 

I would say that there is a difference in the applicability of just war reasoning 
in this particular case, and I would construe it like this. Paul Ramsey used to 
argue that the just war tradition is a guide to statecraft. I agree with that but I 
think that it also needs to be said that there are a lot of other guides to statecraft, 
and just war tradition is only one among them. Just war tradition has specifically 
to do with the question of the use of force in the service of statecraft. I can easily 
imagine covert operations in which the use of force is not the issue; intelligence 



278 Legal & Moral Constraints on Low-Intensity Conflict 

gathering is the case in point. So the kinds of moral concerns that would bear 
on that activity are not identical with the moral concerns that would be brought 
to an operation involving the use of force of any kind. 

I think that's one distinction that we ought to keep in mind. We want our 
politics, I hope, to be as moral as possible, and to me that means that we have to 
take seriously just war concerns. But I think we also have some other concerns 
that, in the case of covert operations, may be a good deal more relevant and more 
important than the several criteria in just war tradition. 

The more general comment I wanted to make has to do with the whole 
question of the institutionalization of policy and its relationship to the American 
public debate over low-intensity conflict. 

I take seriously the comment that lawyers are very seldom consulted, and 
when they are brought in, are not asked the right questions or given a chance to 
respond fully. That's certainly true in spades for the people that do moral studies. 
We are even farther down the list than the lawyers. What needs to be done in 
the policy process, is more than simply having people of integrity around, 
whether they be lawyers or moralists or generals or diplomats. You really have 
to have an institutionalized process by which certain principles get put in place 
and used. Whether guidelines or checklists are used would depend on the rigidity 
of the approach, but something needs to be there that requires policy makers to 
ponder these criteria before they make decisions. That's a way of making sure 
that everybody isn't caught napping when the press or somebody in Congress 
gets hold of a new policy. It's a way of making sure that the debate has, in fact, 
gone on, and decisions have been made in the proper way. But, there's another 
side to the thing, and that is making sure the debate is public. 

George Weigel touched on something that's very sensitive, it seems to me, 
when he pointed out that what we did yesterday in here on just war tradition is 
far more than went on in any seminary in the country this semester. I would say 
that it's probably more like in the last five years. There is not an ongoing public 
debate over these things. Maybe it's because we, as a culture, don't really like to 
talk about the projection of force as a policy matter. The trouble with this is that 
we will get very bad advice and make disastrous ad hoc decisions. So, we've got 
to find a way to get the debate out of this room in Mahan Hall, and into the 
public sphere. 

RADM HARLOW: I hope you will indulge me if I make a few synoptic 
observations to cap off our proceedings. It seems obvious that low-intensity 
conflict brings into play a wide range of domestic and international legal 
principles. At its lower end, this spectrum might include law enforcement 
principles entirely consistent with traditional peacetime international relations. 
Ranging up the spectrum, low-intensity conflict operations could be premised 
on the principle of humanitarian intervention, as is currently the case in Somalia. 



Panel Discussion 279 

At the upper end of the spectrum, when low-intensity conflict operations 
contemplate the taking of human life or the destruction of property, the principle 
of self-defense and, indeed, many of the principles of conventional warfare would 
come into play. 

The application of moral principles to low-intensity conflict presents its own 
challenges. Low-intensity conflict operations could be undertaken in a proactive 
mode to prevent an evil from occurring. As was observed earlier in the discussion, 
moral principles per se are infrequendy considered by U.S. decision makers in 
the midst of a low-intensity conflict crisis. My experience, however, is that moral 
principles do play an important, albeit implicit, role in crisis management. Our 
decision makers instinctively apply principles of just war, proportionality and 
humanitarianism in the development of policy options. In simple terms, the 
applicable moral standard is: one can only launch an operation that involves the 
taking of life if there is an overwhelming and immediate threat to our vital 
national security interests and no alternative non- violent means of meeting the 
challenge. 

Although a multilateral response to threats is always preferable, the United 
States must preserve its ability to undertake effective unilateral low-intensity 
conflict operations. Our effectiveness in conducting operations in this shadowy, 
nebulous arena will in large measure determine our security for the forseeable 
future. 

[After a short break in the proceedings, Rear Admiral Harlow reconvened the 
conference participants and introduced the next two discussants, Judge Abraham 
Sofaer and Mr. Kenneth De Graffenreid.] 

JUDGE SOFAER: When Alberto asked me to speak here, I couldn't help but 
think that Admiral Mahan, whose portrait we see in the next room, would think 
that this is a good idea. Low-intensity conflict is one of the critically important 
dimensions of military strategy. To deal effectively with insurgencies aimed at 
democratic allies and with State-sponsored terrorism, we need the capacity to 
act militarily, but with flexibility and speed. The concept of low-intensity conflict 
also includes many of the most challenging threats to our interests. The United 
States continues to be faced with conventional wars. However, they seem more 
likely than not to be the product of the perversity of our enemies. Forms of 
low-intensity conflict provide a far more promising vehicle than conventional 
war for attacking well-armed Western States. I keep thanking the Lord for the 
fact that the madmen of the world seem not to have read BUI Casey's excellent 
book about the effectiveness of low-intensity techniques and have thus far lacked 
the discipline to master them. But, the increasing use of these techniques is 
inevitable. I believe that Assad is a classic example of the leader who shows the 
discipline to utilize covert low-intensity techniques to attack his enemies. Such 



280 Legal & Moral Constraints on Low-Intensity Conflict 

leaders will last a lot longer and be much more effective than those who do not 
employ these methods. 

My assignment, Alberto wrote, was to deal with the legal traditions, norms 
and morals of American society that constrain resort to low-intensity conflict. 
Of course, Mahan would again approve of this because he strongly resisted legal 
rules that unreasonably or unequally restricted military options. He took law 
seriously. He saw clearly the influence over time that legal and moral norms 
could come to exercise on military operations. So, he firmly opposed rules, both 
domestic and international, that deprived the United States of any important 
military advantage without sufficient offsetting value. 

This is obviously not the time nor the place for a comprehensive treatment 
of every existing legal restraint, every moral impulse in American breasts, and 
every political institution that influences low-intensity conflict. But a brief 
overview of the principal forms of legal constraints should be useful in appraising 
the existing and potential effects of law on this important strategic option. For a 
more detailed explanation of these factors, I recommend you fill out the form 
you have for Michael Reisman's book on covert operations. It is a superb work; 
analytical, pithy and full of useful information and wisdom. 

In general, our domestic legal traditions and practices exercise constitutional, 
statutory, and regulatory constraints on conflict. Additional constraints exist based 
on the U.N. Charter, treaties, practice, and the principle of reciprocity. While 
each category of these restraints can have a separate, significant impact, the most 
efficient way to discuss them in the brief time available, is through a functional 
evaluation that focuses on selected examples of activities involved in low-inten- 
sity conflict, and that examines the key issues related to each activity. Typical of 
these activities are rescue operations, abductions, measures against State-spon- 
sored terrorism, and the support of armed insurgencies. 

The basic question that we have to ask ourselves, and that runs throughout my 
brief presentation, is the one that was asked very pointedly yesterday: Why do these 
activities deserve special study? What is unique about them? I would submit they 
merit study for many good reasons. First, with respect to domestic limitations, 
strong arguments can be made either that the President has inherent authority 
to use limited force to protect Americans through rescues or anti-terrorist strikes, 
or that Congress has approved such activities in various statutes authorizing the 
arrest of terrorists and establishing the special forces intended for such purposes. 

Much stronger arguments can be made with respect to low-intensity conflict 
along those lines than with respect to high-intensity or conventional conflicts. 
Furthermore, while the War Powers Resolution applies to low-intensity ac- 
tivities involving the use of regular combat forces, these activities generally do 
not involve such forces. At least, that's the way we interpreted it in the Reagan 
Administration, and that interpretation has been accepted. Also, many of the 
activities involved in low-intensity operations take less than 60 days, and so never 



Panel Discussion 281 

require the approval of Congress under the War Powers Resolution. Presidents 
have, furthermore, taken the view that such actions are quintessentially those 
concerning which a report is not possible due to the need for secrecy. So, the 
Resolution tends to create fewer problems even for those low-intensity activities 
to which it does apply. In general, it seems safe to say that limited uses of force, 
designed to serve a special purpose, create less concern in Congress than broader 
uses of force, such as the war to liberate Kuwait. 

The dramatic and substantial air strike against Libya created no significant 
difficulty in Congress, although it was stricdy unilateral, not only because the 
objective was widely supported, which it was, but also because Congress did not 
view this onetime, single-purpose effort as a threat to its institutional role and 
constitutional powers. Conversely, when Congress saw that President Bush was 
about to wage a full-scale war to liberate Kuwait without its approval, it acted 
to prevent what would have been, I believe, a de facto loss of its authority. 

Now, there are exceptions to this generally hospitable view of low-intensity 
devices under domestic law. Those are the special situations in which Congress 
has sought an ever greater role in regulating certain covert activities and in making 
sure that they are subject to legislative review. Where a low-intensity operation 
is a covert operation under the Intelligence Authorization Act, fiscal year 1991, 
absent a presidentially declared emergency, special reporting, approval, and 
funding requirements apply. No such action is allowed that would violate the 
Constitution as expressly provided in the statutes. This leaves in place, however, 
the President's power to authorize such operations even if they arguably violate 
international law, the laws of foreign countries or possibly even U.S. statutes. 

Finally, Congress is particularly protective of its exclusive power to fund all 
U.S. Government activities. Now, I'm not advising anyone to violate a U.S. 
statute with a covert operation. I think, however, if you report a covert operation 
that contains an arguable violation of the U.S. statute and the committees do not 
take you to task for it, you will be given the benefit of the doubt as to whether 
it does, in fact, violate the U.S. statute in that sort of situation. That would not 
be true of the funding requirements. I think there's nothing Congress feels more 
strongly about, particularly after Iran-Contra, than the possibility that covertly 
generated funds could be used to support other covert operations, which would 
then not be subject to Congressional check through the budgetary process. 

The single most significant limit imposed by executive order on low-intensity 
operations is the prohibition on assassination. While I share the doubts expressed 
at this conference about the wisdom of targeting foreign ler-ders, some interpreta- 
tions of this prohibition have unreasonably restricted the capacity of the U.S. to 
use a variety of important low-intensity methods, even in self-defense, which 
might, not intentionally, result in the death of a foreign leader. 

The meaning of assassination in the executive order, however, has been 
limited in several ways during the last few years. Most significantly, it's been 



282 Legal & Moral Constraints on Low-Intensity Conflict 

limited to situations in which the homicide involved is properly characterized as 
a "murder," in other words, a criminal act. So, I think that the legal limitations 
on "assassination" are in good order, relatively good order. No President can be 
given, nor would ever need, authority to murder people and so the issue really 
is not, I believe, as difficult a problem for planners as it used to be. 

In that connection, I might say that it's my view that the flak we took over 
this assassination problem during the early part of the Bush administration, was 
the product of individuals within it who did not want the authority to support 
insurgencies. Not just to kill people, but to support insurgencies. A way of doing 
that was to broadly construe the assassination prohibition, and then leak that 
construction to the press. This is something we see used in Washington, over 
and over again, as a way of precluding options that our government planners 
legitimately have before them. It took months to clean up that problem, but we 
did it and I think Bill Barr certainly deserves enormous credit for it. I'm pleased 
to say I played a constructive role. Jack McNeill was also involved in that, I 
believe. 

Low-intensity conflict also has many unusual qualities and poses unique 
problems under international law that make it a deserving subject for separate 
analysis. I will touch upon a few problems, by way of illustration, with respect 
to activities involving the use of force and others involving controversial actions 
clearly outside the scope of use of force limitations. 

Perhaps the most dangerous notion in this area is the view that force may be 
used in self-defense only in response to an armed attack in which regular forces 
of a State, in some manner, invade another State's territory. Some who advanced 
this view no doubt sincerely believe the U.N. Charter should be read so literally. 
But such a reading of the Charter is not textually required, and is totally 
inconsistent with the practice of nations throughout human history, including 
the post-Charter period. Advocates of the notion that self-defense is so limited 
are forced to make exception after exception to their vision of self-defense under 
the Charter in order to account for such actions as the rescue at Entebbe, the 
right to protect nationals abroad, and the right to preempt attacks. These 
"exceptions," necessitated by such literal interpretations, undermine the integrity 
of the Charter and leave it vulnerable to unprincipled ad hoc exceptions made to 
suit the convenience of particular States or ideologies. 

I must say in this connection, that Lou Henkin demonstrated integrity in a 
debate with me at the New York City Bar Association over the Panama affair 
when he defended this narrow interpretation of armed attack. In response to the 
question whether he believed that the right of self-defense applied to a smaller 
State on whose borders a larger State was accumulating a force for the apparent 
purpose of invading it, he maintained that the smaller State had to wait until it 
was actually attacked before it had the right to exercise self-defense under the 
Charter. I wish events like this would get more publicity, because when you see 



Panel Discussion 283 

in print these sort of abstract, scholarly and gentle statements by people like Lou 
Henkin, and he is a wonderful man, they have credibility. But in that room, at 
that moment, the credibility of this point of view was completely shattered, even 
among people who were overwhelmingly hostile to my relatively expansive view 
of the concept of self-defense. 

Limiting self-defense to responses to armed attacks by regular forces of one 
State against the territory of another, would have grave consequences for 
American interests. On the one hand, the U.S. would be deprived under such a 
view of the ability to claim it is acting in self-defense when it responds to 
low-intensity techniques, such as acts of State-sponsored terrorism aimed at 
Americans outside the U.S. Other States would thereby be free to use low-in- 
tensity techniques short of an armed attack against the U.S. with greater freedom 
than if such actions were understood to trigger the right of self-defense. On the 
other hand, since the ability to invoke such countermeasures is theoretically 
available to Professor Coll, as a practical matter we could not, and should not, 
utilize the full range of such techniques. Our domestic moral and legal traditions 
and constraints would strongly inhibit aggressive actions, even if they did not 
amount to overt armed attacks. 

Another problem of particular relevance to low-intensity activity, especially 
when covert, is the legal position of a State that uses persons other than its own 
armed forces or avowed agents, to implement its aims. This is one of several areas 
in which the U.S. has shown an unacceptable inconsistency in its application of 
legal principles. In general, no State should be able to evade any measure of 
responsibility properly attributable to it, for a given use of force or other action 
merely because it uses persons who have no other association with it to 
implement that policy. Of course, one who supplies arms to a nation or to an 
individual, bears no responsibility for unintended results beyond what could 
reasonably be expected to occur. But if we supply a bomb to some insurgents 
for the purpose of causing an illegal act to be performed, or with a reckless 
disregard for illegal consequences, we are surely responsible for such acts in some 
appropriate degree. We held Libya responsible for using terrorists for the purpose 
of killing Americans, and these were the words used by the President: "To the 
same extent Libya would have been responsible, had it used its own armed forces 
for that purpose." 

Other areas in which the U.S. has had difficulty coming to grips with problems 
associated with low-intensity conflict include the following: the principle that 
no illegal act can be treated as lawful, merely because it is done covertly rather 
than overtly. In other words, covert operations are designed to enhance effec- 
tiveness, not to evade accountability. There is no moral, legal, or any other basis 
for claiming an evasion of accountability through the use of a covert technique. 
And there are many of our non-lawyer leaders who need to be taught that lesson 
over and over again. 



284 Legal & Moral Constraints on Low-Intensity Conflict 

Another example of acts short of the use of force in which we may engage is 
the manner in which we treat diplomatic missions or pouches. This conduct is, 
in my view, reciprocally permitted to the States against whom we take such acts. 
Also, it has to be said that we undermine the position we have taken in 
international fora on agreements such as the Vienna Convention when we pursue 
covert policies so consistendy at variance with our official position that the 
discrepancy becomes common knowledge. Then there really is no longer any 
credible basis for us to go to other countries and say that they are supposed to 
operate in a different way, vis-a-vis our own missions. 

Another difficult subject which must be addressed is that of acts which violate 
the domestic laws of foreign States. Here is a very, very sensitive issue which we 
have been dancing away from for years. Internally, we look at it periodically, but 
there are very few open discussions on this issue. These acts, I would submit, are 
inconsistent with the general policies and objectives of international law and 
should be undertaken only where some overriding legal principle is available as 
justification, and where we could regard such acts as appropriate, if taken under 
the same circumstances within the United States. Now, that's a very challenging 
statement, but if you think about it, we should be able to meet that standard. We 
have to look at it carefully. I would take into account the fact that the United 
States should allow a certain degree of investigative activity in this country by 
foreign countries. We do tolerate it, because we certainly engage in it overseas, 
and we could permit a certain amount of this kind of thing without harming 
ourselves. I'm not suggesting violations of the U.S. law by any means. I'm 
suggesting relatively harmless things. But if we try to create double standards, we 
simply won't succeed, and we had better be realistic about that fact. At least 
somewhere in some forum, maybe not here, maybe not in public debate, but at 
least somewhere, we have to sit down and cope with the real consequences of 
what people know we're doing overseas. At the time I left the U.S. Government, 
we had not succeeded in dealing with these and other similar issues in an 
intellectually satisfying manner. 

Beyond the issues concerning low-intensity conflict raised by the familiar 
mandates of international law, are some potentially constraining and possibly 
liberating effects of the new international order. The collapse of the Soviet Union 
has created a situation in the Security Council where widely accepted norms of 
international conduct may, for the first time since the Charter's adoption, be 
taken seriously. While the new international order may lack substance in many 
other areas of international activity, it means something in the area of interna- 
tional law. 

In dealing with Iraq's attack on Kuwait, the Council proceeded from measure 
to measure until it finally authorized the use of force. Using the Council so 
effectively helped the President to garner widespread support internationally, and 
may well have been pivotal in securing the approval of Congress. It is already 



Panel Discussion 285 

clear that this process is potentially available to respond to low-intensity conflict. 
The Council has recently adopted a resolution that will impose economic 
sanctions against Libya under Article 41 for failing to turn over the two agents 
indicted for blowing up Pan Am Flight 103. These extraordinary developments 
have created serious complications and grave risks for national security planners. 
Having once resorted to the Security Council to deal with Iraq, and now Libya, 
the U.S. will be under constant pressure to report all acts of aggression to the 
U.N. The U.S. will not, moreover, always have its way in the Council; four 
other States have the veto, and clear-cut decisions can be avoided where a large 
enough number of States want no clear result. Furthermore, in issues concerning 
national security, timing can be everything. Over six months went by before Iraq 
was pushed out of Kuwait, by which time that country was raped. Relying on 
law enforcement to punish Libya for the Pan Am Flight 103 bombing has already 
taken over three years, and the process of forcing the surrender of the two 
indicted agents could take months, and might never succeed. Once the Council 
refuses to accept a measure sought by the U.S., it will be difficult to act 
unilaterally, irrespective of how many times or how clearly that right is asserted. 

Finally, the Security Council is far less predictable than unilateral action. The 
process that is taking place in the effort to obtain custody of the Libyan agents is 
ample proof of this. Libya has taken the U.S. and the U.K. to the International 
Court of Justice to derail their plan, and it may succeed in obtaining from the 
I.C.J, at least enough to undermine our political leverage in the Security Council. 

So, what should be done about the U.N.? In some respects, we have little 
choice. We have committed ourselves to develop the potential of the U.N. 
Security Council to perform its intended role in governing international security. 
My own view is that we should try to succeed, even as we retain at least a fig 
leaf of the right, the theoretical right, to act unilaterally if the Council fails to 
protect some fundamental interest. By this, I mean much more than using the 
Council as a highly visible vehicle to serve U.S. interests. We should take very 
seriously the creation of a U.N. force, as well as its use in low-intensity conflicts. 
Some interesting advantages could flow from such expanded use, not the least 
of which would be the Council's relative freedom from constraint by our own 
domestic institutions. 

In conclusion, let me assure you that I take very seriously the notions discussed 
yesterday about just wars and morally-driven interventions. I recognize that 
international law is not, and cannot be, morally neutral. Also, I fully agree that 
these matters of moral justification should be a part of a sound international 
lawyer's analytic framework in evaluating low-intensity warfare. Nonetheless, 
my view of the lawyer's role in such issues requires a high degree of restraint in 
pushing any point of view other than those that are very widely accepted. Lawyers 
and law are already too often relegated to subordinate roles in which they are 
seldom heard, even on the stricdy legal issues. Lawyers need to restore their 



286 Legal & Moral Constraints on Low-Intensity Conflict 

credibility in this area with steady, realistic, and honest advice, keeping in mind 
that to say that the law allows a given action, does not mean it should be taken; 
whereas to say the law proscribes a given action does mean it should not be taken 
irrespective of the views of duly elected or appointed individuals as to its moral 
and political wisdom. The law's role in evaluating low-intensity conflict, there- 
fore, should be to force decision makers through rigorous and comprehensive 
examination of all the relevant circumstances on each of the issues presented. 
I hope my brief comments today are of some help in pointing the way. 

RADM HARLOW: Thank you. Ken, you have the floor. 

MR. deGRAFFENREID: It's a pleasure for me to be here this morning to 
share this panel with Admiral Harlow and my good friend, Judge Sofaer. I was 
asked to consider the moral and legal constraints on successful U.S. engagement 
in low-intensity conflict. So the purpose that I have this morning is on a rather 
more practical level than, perhaps, some of the discussion that we had yesterday. 
I will try to speak from the point of view of a policymaker involved in at least 
one aspect of low-intensity conflict for about ten years. 

Professor Coll mentioned that I was on the staff of the Senate Intelligence 
Committee. I did that for four years in the late '70s when I was intimately 
involved in covert action issues and was one of the principal drafters of the 1980 
Oversight Act, which attempted to provide some ground rules for congressional 
oversight, particularly in the area of covert action. Following that, I spent six and 
a half years at the White House as the intelligence policy person on the National 
Security Council staff, where I was responsible for looking at all of the covert 
actions coming forward from the CIA and, to a lesser extent, the Department of 
Defense, for most of the Reagan period. 

From that perspective then, I want to say a few things about one aspect of the 
moral constraints and the moral underpinnings of U.S. engagement in low-in- 
tensity conflict. I will specifically address the tradition of American political values 
that have influenced our foreign policy in general, and particularly, our use of 
force. Much of this will be familiar to many of you, and I will only make a few 
important points. Then I want to descend to the mythical White House basement 
and talk a little about how moral and legal constraints affected the process by 
which the United States developed and implemented one example of covert 
action policy in low-intensity conflict. 

To begin all this, I really have two propositions to make. The first is that the 
United States today has a greater capability to engage in low-intensity conflict 
than perhaps ever in its history. The creation of the Special Operations Com- 
mand, the Assistant Secretary for Special Operations and Low-Intensity Conflict, 
and a more sophisticated and mature approach to these issues on the part of the 
Congress and within the intelligence community, have all enhanced the means 



Panel Discussion 287 

at our disposal to deal with low-intensity conflict. But I submit that we, in fact, 
lack the will to engage in most forms of low-intensity conflict. We are willing 
to engage in only the most classic types of special operations applications which 
have been traditionally part of military activities. I believe this lack of will 
precedes from the perception that, by and large, the means and ends of 
low-intensity operations are not in keeping with American political and moral 
values. 

I have a second point which may seem somewhat curious in light of my first 
proposition. It isn't so much that moral and legal limitations constrain the work 
of creating and implementing policy. It is rather that the virtual absence of a 
moral and legal framework for formulating and implementing our engagements 
at the low end of the conflict spectrum seriously inhibits consideration of effective 
low-intensity engagement. 

Let me say a few things then about that American political tradition and some 
of the points that I take from it. 

I think the conduct of American international relations is inseparably bound 
up in the moral and legal values that are revealed in our history, traditions, and 
temperament. These national characteristics, together with the understanding of 
international political realities peculiar to America, shape our general approach 
to foreign policy. Throughout our history, American statesmen, and almost 
certainly the American people as well, have conceived of our place and purpose 
in the world in a special and largely moral way. From the earliest days of the 
Republic, American thought has conceived of the nation as a new world apart, 
distinct from the despotic European order in which foreign policy was driven 
by base expedience or morally bankrupt constructs such as the balance of power. 
According to this deeply held myth, our foreign policy goals reflect the idealistic 
vision of a new type of political community, essentially moral and universal in 
its principles of personal liberty and democratic government. 

As one student of early American political thought has noted of this motivating 
legend, "America is the land of the future, where innocent men belong to a 
society of virtuous simplicity, enjoying liberty, equality and happiness; Europe 
is the bankrupt past, where fallen men wander without hope in a dark labyrinth, 
degraded by tyranny, injustice and vice." 

The United States was to become the model society for the universe and make 
a profound contribution to mankind's political redemption. The Founding 
Fathers saw it as the vehicle for the realization throughout the world of what 
were then called "The Natural Rights of Man." This vision of America's future 
in world politics cut across almost all of the partisan and ideological divisions of 
the period. We find Ben Franklin observing that "the cause of America is the 
cause of all mankind; assigned to us by providence." Thomas Paine found the 
American Revolution, "the most virtuous and illustrious revolution that ever 
graced the history of mankind, the harbinger that creates the new world order 



288 Legal & Mora) Constraints on Low-Intensity Conflict 

in which the spirit of jealousy and ferocity, which had in the past been 
characteristic of world politics, would give way to the dictates of reason and 
humanity, so that force would no longer be the prime arbiter of international 
quarrels." 

Even those Founding Fathers with a greater reputation for realism such as 
Alexander Hamilton, shared this vision, calling the American experience, "The 
cause of virtue and of mankind." Said Hamilton, "The world has its eye on 
America. The noble struggle we have made in the cause of liberty has occasion 
to kindle revolution and human sentiment. The influence of our example has 
penetrated the gloomy regions of despotism and has pointed the way to inquiries 
which may shape the deepest foundations of the world." This sounds a little bit 
like the kind of discussion we were having here about the spread of democracy 
in the closing decades of the twentieth century. My point is simply that this 
tradition remains in place 200 years later. I think that any look at foreign policy 
debates today and during the Cold War period will find that they have been 
couched in unambiguously moral terms regardless of political orientation. That's 
one tradition. 

The other tradition, not unrelated to the first, has to do with how Americans 
view war. Our virtually unique understanding of the dichotomous states of war 
and peace has been well dissected by scholars and practitioners alike. American 
thinking rejects the Clause witzian continuum between peace and war. We view 
peace as the normal state of international relations; war as an aberration. The use 
of force in international affairs is to be avoided, but when war does come, it is 
seen as the result of some overwhelming evil. Political considerations are then 
to be set aside, and military victory obtained as quickly as possible so that the 
world may return to peaceful normalcy. In sum, the U.S. view of war is ultimately 
concerned with moral justification. War is considered to be an irrational act of 
evil leaders or nations. These views combine with the aversion to power politics, 
evidenced in those few quotes from the Founding Fathers, and probably shared 
by the vast majority of Americans. You will see quickly, of course, that the world 
of low-intensity conflict with limited ends and limited means, which nevertheless 
puts American lives in harm's way, runs counter to the tradition I have just 
characterized. Even a cursory examination of the types of conflict in which the 
United States has engaged since the beginning of the Cold War shows that the 
lower or gray end of the conflict spectrum has given us particular difficulty . 

Let me now say a few things about our moral difficulties with low-intensity 
conflict. First, and this is something Alberto Coll mentioned last evening, is the 
issue of means. I think the perception is not unfounded that the means of much 
of what passes for activities in the low-intensity area are, in fact, dirty tricks, not 
in keeping with the highest American ideals; not in keeping with the kind of 
virtue that was referred to yesterday. So, I believe "means" is one area in which 
low-intensity conflict is foreign to the American tradition. 



Panel Discussion 289 

The second concerns the use of force for limited ends. Americans are willing 
to die, or at least to put themselves in harm's way if the purpose is victory over 
evil. But if the end is an adjustment to American national interests and is not seen 
as a higher order moral issue, it is very difficult for most Americans to believe 
that force is warranted. As I pointed out very briefly, Americans tend to see 
conflict in black and white terms. So, their tendency is to say well, if we're not 
going to win that fight, we shouldn't get into it. These thoughts are in the words 
of the Founding Fathers and they are echoed in the debate about DESERT 
STORM. I don't think the influence of our founding philosophy in the use of 
force in foreign affairs has lessened much in the past 200 years. 

The point I wish to make is that in most cases, particularly covert action, 
low-intensity engagement must come early if it is to be effective. Now, this runs 
counter to the just war checklist that was discussed yesterday. Covert action is 
seldom effective if it is used as a last resort. Much of American covert action in 
the post- World War II period may well have been ineffective because it was too 
little, too late. So, our reliance on just war thought in this case reinforced the 
constraints on low-intensity conflict that derive from our native philosophical 
tradition. 

The fourth point I'd like to touch on, mentioned earlier by Abe Sofaer, is that 
much of low-intensity engagement is secret. Those of you who followed the 
intelligence revelations of the mid-'70s will remember the premise of the Church 
Committee was that secret operations, intelligence activities and covert actions 
were, because of their secrecy, a threat to our democratic values. To some extent, 
a serious case can be made that that's true. This is another aspect of low-intensity 
conflict that rests uneasily with our tradition. 

Let me turn to the topic of covert action. I have been greatly struck by the 
fact that most of the individuals I've encountered in the process of developing 
and implementing covert action policy have a personal moral "compass" which 
is given no opportunity for expression by the process itself. This is a dilemma 
that must really be considered by the folks in the Office of the Secretary of 
Defense. The process of looking at covert actions in low-intensity conflict, and 
designing the policies and measuring the implementation is itself not explicitly 
influenced by what we could call collective moral reasoning. That is to say, moral 
issues do not generally make it to the policy table even though these individuals 
themselves may be struggling with them in their own minds. 

I want to go farther and suggest that in the absence of a process which calls 
forth these moral considerations in advance, it is unlikely that the United States 
will have the ability to develop the interest in low-intensity engagements that 
would lead to success. My observation was that this aversion to low-intensity 
conflict in general extended to the White House, where there was no call from 
on high to develop covert action. What would happen is that the CIA would 
send up a covert action, usually as a courtesy copy on its way to the Hill to meet 



290 Legal & Moral Constraints on Low-Intensity Conflict 

the congressional oversight provisions. There would be a brief debate about how 
to limit the knowledge on the Hill, lest it be leaked and the program be done in 
early on, and beyond that there was very little discussion of the purpose of the 
covert action or its relation to policy. In that context, certainly, there was little 
consideration of what we have been talking about for the last two days, of the 
moral dimensions of the proposed action. 

An example I would like to consider briefly is the Afghanistan covert action 
program. When the Reagan Administration came into office, the Carter Ad- 
ministration had already begun a covert program of supporting the Mujahedin 
against the Soviets in Afghanistan. This was already a substantial program, but it 
appears to me that the Reagan Administration took the view, and I'm going to 
be a bit facetious here, that if the Carter Administration could spend X dollars 
in Afghanistan, it behooved the Reagan Administration to spend 20 X. That was, 
at least for the first several years of the Reagan Administration, essentially the 
extent of the policy debate as to the wisdom, efficacy and morality of the program 
in Afghanistan. Now, that is not to say that individuals did not believe that 
American support to the Mujahedin was a key element of what we might call, 
in retrospect, the Reagan Doctrine. To the best of my knowledge, however, and 
I had staff responsibility for this, I do not believe there was ever a formal 
discussion, or for that matter, an organized informal discussion of the issues 
involved in Afghanistan. We were simply dumping an awful lot of money into 
supporting the Mujahedin with almost no consideration as to what was happen- 
ing. Now, if that had been simply a program to give food aid or medical supplies, 
one could say that there wasn't a lot of additional policy consideration required. 
But, of course, the effect of American support was very much to result in the 
loss of lives, both Russian and Afghani. American lives were not involved, but 
nevertheless, this was lethal aid on a rather grand scale. In fact, it was the largest 
covert action program in terms of dollars and equipment in American history. 

After a number of us attempted over the course of several years to force a 
policy discussion on Afghanistan, we finally succeeded in convening a meeting 
at which we could ask basic questions about our purposes in Afghanistan. The 
result was guidance for the White House staff to develop a checklist to evaluate 
implications of the covert action program for American policy objectives. Those 
of you who advocate the use of just war doctrine as a convenient means of 
appraisal will be pleased to learn that we did just that. Without mentioning just 
war, we simply incorporated various criteria in a nice bureaucratic sounding 
checklist and asked CIA for a reply. There was a bitter dispute because no 
bureaucrat wants to be measured with regard to his or her performance, and so 
there was a natural reluctance on the part of those engaged in carrying out the 
covert action to have to answer these questions. Likewise, there was a reluctance 
on the part of policymakers to have to define exacdy what they were doing 
covertly and what they intended. 



Panel Discussion 291 

The result of this, after about two years of agony, was the development of a 
serious policy; one in which moral issues were considered. It was decided that 
simply killing Russians was not the object of the covert action programs, but that 
American support should be directed to driving the Russians from Afghanistan 
in the most effective way possible. Whether or not you agree with that covert 
action and the American presence in Afghanistan, at least through this process 
we were able to consider the moral and legal implications of what we were doing 
there in a forthright way. 

That drill only partially took in further covert actions, and I suspect may not 
yet be the standard government approach with regard to other forms of 
low-intensity conflict. For that reason, I submit that we badly need a process to 
foster the kind of debate that we forced over Afghanistan. Otherwise, two 
unfortunate things will happen. First, we are less likely to have a moral American 
policy in keeping with our traditions, and second, we are less likely to be able 
to mount any kind of successful engagement at the lower end of the conflict 
spectrum because our institutions will continue to shy away from serious 
consideration of the issue. I stress here that we need to develop a sense of the 
moral purpose of our policies. 

I would leave you in closing with one last question about the morality of 
low-intensity conflict that has not been raised. Is it better to take the measure of 
a challenge today, which if left unaddressed, is likely to become much more 
bloody and difficult to resolve? If, in some situations, a moral purpose can be 
served by taking immediate action to prevent a worse outcome later, can we 
devise a way to take this into account when weighing the moral implications of 
engagement in low-intensity conflict? 

Thank you. 

RADM HARLOW: Thank you gentlemen. Before I open it to questions and 
comments, let me make a few observations on what I felt were the highlights of 
these very interesting discussions. 

Two points at the outset, I think, were important. Judge Sofaer stressed the 
fact that the hallmarks of low-intensity operations are flexibility and speed. I 
couldn't agree more. Flexibility, because we can in no way anticipate what the 
challenge will be in the next weeks or months. And speed, because we have to 
shift forces anywhere on the globe where a challenge may arise. Secondly, Ken 
deGraffenreid made the point that low-intensity warfare offers the opportunity 
to reduce the level of violence later in the process. One may look at it as an 
opportunity to limit the damage of a confrontation through early action that is 
clear and decisive. I believe this is an important feature of low-intensity conflict 
not shared by conventional warfare. 

Judge Sofaer pointed out that we have a whole range of domestic constraints: 
statutory, regulatory and of course, moral. Additionally, we have international 



292 Legal & Moral Constraints on Low-Intensity Conflict 

constraints through the U.N. Charter and through other limiting international 
agreements and rules. He discussed how these rules provide a special challenge 
to the conduct of low-intensity operations, but observed that the impact of the 
U.S. War Powers Resolution may, perhaps, not be as onerous in low-intensity 
conflict as it would be in the case of the traditional use of regular forces. The 
Judge made the point that when low-intensity conflict operations are of a shorter 
duration and do not involve overt combat, they may not trigger the War Powers 
Resolution. 

Judge Sofaer touched on the sensitive issue of congressional oversight of covert 
operations in the context of a more general discussion of intelligence matters. In 
my judgement, a critical element of a proper and effective low-intensity program 
is an ample and credible intelligence program. Most information at this lower 
level of intensity is far from clear. It is fragmented and often contradictory. In 
this arena, we are involved in an ambiguous stage of a national security threat 
and, therefore, good intelligence backup is essential for sound decision-making. 
As was pointed out, however, intelligence, or "espionage" as some style it, places 
us on the margin of moral and legal conduct. It is a very sensitive and difficult 
issue to grapple with, particularly in an unclassified forum, as is the case here 
today. Nonetheless, one must think in terms of this underlying need if we are to 
effectively discuss all aspects of the United States policy dealing with low-inten- 
sity conflict. 

The Judge also observed that the U.S. must come to grips with the fact that 
we cannot escape responsibility in the intelligence gathering arena by "hiring" 
informal agents. Such an approach must be carefully controlled in any program 
that we would envision for the future. 

Judge Sofaer and Mr. deGraffenreid talked in terms of a new international 
order with particular reference to the positive part played by the U.N. Security 
Council in the DESERT STORM operation. It took on a new and expanded 
role in a manner that perhaps none of us in the room would have expected in 
our lifetimes. While supporting such an international approach, we must be 
careful that the use of the Security Council, or any other international fora, does 
not restrict our ability to act unilaterally. We must carefully find our way through 
this thicket so as to not preclude unilateral action should the requirement arise; 
but neither should we turn our backs on the promise for international coopera- 
tion and stability offered by multilateral diplomacy. 

Ken deGraffenreid proposed two factors that impede our ability to act in the 
area of low-intensity warfare. First, he considers that the U.S. may lack the will 
to back up low-intensity engagements, particularly early in the threat stage when 
the need for action is less than clear. 

Secondly, he points out that American traditions of moral superiority and 
aloofness from the rest of the world tend to make Americans think in absolute 
terms of right and wrong. I cringe at this expression of "moral superiority" but 



Panel Discussion 293 

it nonetheless has been a thread that has woven itself through a lot of American 
thought for many years. An integral part of this thinking is that war is an irrational 
act and that when it does become inevitable, should be prosecuted vigorously 
with an insistence on an unconditional peace. He points out correcdy that the 
ambiguity of low-intensity warfare rests uneasily with these principles. 

Ken also described some of the moral dilemmas that we face as a nation with 
regard to low-intensity warfare. He pointed out, among other things, that 
Americans are suspicious and worried about covert operations. Just as we tend 
to be leery of things done behind our backs, we also look askance at deceptions 
practiced upon citizens of other countries. 

This is my experience also. It is true that in the context of crisis management, 
there is little time for moral introspection. Practical considerations — political and 
military — are given primary, if not exclusive attention. I have found, however, 
that there has been an implicit moral/ethical/legal underpinning to the politics 
and programs that were eventually approved and pursued. Hopefully, this 
conference can characterize and clarify these underlying scruples. To do so will 
significantly contribute to effective U.S. policy formulation and decision-making 
in the complex arena of low-intensity conflict. 

At this time, I'd ask for comments and discussion from the floor. 

MR. MCKEE: Admiral, thank you. Craig McKee of the Bureau of Intelligence 
and Research, Department of State. 

I thought the presentations this morning were practical and good. I have a 
couple of notes on the intelligence process. We find many times that the 
enormous "vacuum cleaner" called the U.S. intelligence system actually had the 
information we need. The problem is whether it gets to a high point in the 
decision-making process quickly enough to matter. Official recognition of a 
low-intensity challenge often follows by months or years the time at which an 
effective policy might have been developed to meet it. A second point is that 
during the last six years a somewhat improved procedure has been established, 
as Mr. deGraffenreid mentioned, to handle the findings. The CIA is required to 
notify the other agencies of a proposal, and there's a time limit under which they 
can respond with their own policy recommendations. I don't know whether it 
is that much more efficient, but I think it is an improvement over the earlier 
procedures for findings. 

RADM HARLOW: I agree. 

PROF. FARER: I agreed with much that the two speakers said, and said so 
well. There were perhaps three points I thought worth raising. 

One has to do with preemption. You didn't define your concern with 
preemption very clearly, Abe. I think you would agree we need to draw some 



294 Legal & Moral Constraints on Low-Intensity Conflict 

lines there. Going back to the Nuremburg tribunal, when the Nazi war criminals 
were accused of crimes against peace, they said that every country must be the 
best judge of its security, its longer strategic needs, and sometimes this requires 
preemption. That's essentially the defense position which, of course, was rejected 
by the court. Every time the Soviet Union increased its nuclear capacity, they 
presented a serious problem to us; the prospect of exterminating us, in fact. We 
never considered preempting. Isn't it dangerous in a world armed the way our 
world is, to take too expansive a view of preemption? The usual argument, as 
we all know, is that because we have weapons of mass destruction, we have to 
be able to preempt. But, when you think of all of the false alarms that we've had, 
we realize the problem with preempting is, if you're wrong, you've made a very 
serious error indeed. The point is made. 

Secondly, the reference to problems — both the opportunities and risks — of 
going to the Security Council. In that connection, Abe, you said, "timing is 
everything." I have to admit I thought either that's a cliche without content, or 
it's wrong. Take the two cases you gave; Libya and Kuwait. Does it really make 
any difference whether we get those two agents out of Libya now, next week 
or in a year? If we can get them, the system has worked, and I think it would be 
a tremendously important precedent. I don't think it makes a bit of difference 
when we get them. So, therefore, in your case, I don't think timing is everything. 
I don't think it's anything. In the case of Kuwait, of course, the country was 
ravaged before we got the Iraqis out, but we weren't in any position to get the 
Iraqis out on day 1 or day 25. So, you have to really make the argument that the 
time taken to get multilateral support for our operation was much greater than 
the time that would have been required for us to mount a unilateral operation, 
which is by no means clear. 

Last point. Congress. We tend to see Congress the way German leaders and 
thinkers of the eighteenth and nineteenth century tended to see civil society; as 
a burden to the extent it exerts constraints on what you'd like to do internation- 
ally, or, as a place where you can find resources. We tend to think of Congress 
mosdy as a place that gives us the money to do what we want to do, but is 
otherwise a nuisance. In a way you can say the same thing about the Security 
Council. Maybe these two criticisms overlap, but the point is that sometimes 
we're wrong. If we had had to submit ourselves to the review of a multilateral 
agency like the U.N. in the case of Vietnam, where many of us feel that the 
expenditure of national assets in a wasteful way was a moral issue, we probably 
would have had to cut the process short. 

European countries run by some very fine able men stumbled into the first 
World War, and virtually destroyed Europe. Even very able and well-intentioned 
people make serious mistakes, and we haven't always had the ablest men running 
the United States Government. Our elections process doesn't always yield men 
of admirable character and ability in the top position. If the President has a bee 



Panel Discussion 295 

in his bonnet and he's determined, he can impose policy on our bureaucracy, as 
complicated as it is. Congressional oversight and the oversight of the larger 
international community can sometimes help us to do what we want to do, and 
provides us at other times with an opportunity to rethink our ambitions. 

JUDGE SOFAER: I'm not going to comment, Tom, on the parts of your 
remarks that I agree with, and there was much of what you said that I do agree 
with. I didn't try to deal with the preemption problem. I tend to believe that it 
is more a problem of tactics or judgement than of law, and properly so. 

Coming to the key issues that you mentioned at the end, I don't mean to 
suggest that Congress can't be right. I think it was right in the Packard 
Commission. I think Congress has been right on many things that have a very 
important bearing on our military capacity. But Congress does more than just 
review things or exercise its legal rights. We are aware of repeated extralegal 
efforts by Congress to influence events and perform tasks that are really Executive 
Branch responsibilities. There are many areas, particularly in low-intensity 
conflict, where Congress has approved the kinds of activities in advance that we 
want to engage in, and yet wants to be involved in reviewing their implemen- 
tation. We just have to say no to that and go ahead and exercise executive power 
and take the licks that are associated with the job. 

PROF. FARER: Why? Why do we have to say it? You know, Abe, you can't 
deal with 445 members of Congress, but why can't you deal with five, or ten? 

JUDGE SOFAER: Well, you can't because you don't just deal with them. 
You deal with their staffs and then you deal with the Washington Post. Either 
you're going to be the Executive and exercise your constitutionally mandated 
power, or you change the nature of our government. The President, the 
Secretary of State and the Secretary of Defense don't have their jobs in order to 
go sit down with the Chairman of the Senate Armed Services Committee, 
however great a guy he is, to implement a rescue operation. Chairman Aspin 
doesn't oppose rescue operations; Congress has authorized them. They don't 
oppose the seizure of terrorists who have killed Americans abroad; they've 
authorized it in a criminal statute. Yet, he has said to me, this is on the record, 
"Why can't you just let us come down there and talk to you about each of these 
things when you're planning to do them," precisely in the spirit that you just 
recommended. I said, "Because I have my job and you have your job and I'm 
not going to give you my job. That's why." That's what it all amounts to 
historically, and that is how it is today. Now, Congress wanted to take my job. 
That's what Hamilton and Madison said would happen. You know, I interpret 
treaties, that's my job, but I'm not going to give Congress my power to interpret 



296 Legal & Moral Constraints on Low-Intensity Conflict 

treaties. That's the way it's supposed to work. You're supposed to stand firm and 
take your licks in this government, or the President is being ill-served. 

Now, turning to the other point you made about the Security Council. I think 
that's very, very important. Perhaps I overstated my position. I certainly was not 
trying to suggest that every delay is unacceptable. In fact, overall, I think we have 
to live with these delays. I do mean to say in national security affairs that time 
can be everything and is very, very important. You ask, "what difference does 
it make as long as we get those two guys?" I rejoin, "does it make any difference 
if we do get the two guys?" If you were concerned about deterring acts of terror 
such as the destruction of Pan Am Flight 103, you might well conclude that what 
we are doing has absolutely nothing to do with the deterrence of national security 
threats. Now, we may be creating a very important precedent in multilateral 
cooperation and it's one that I support. But the facts of the matter are that Libya 
may not be the only State involved in this issue, that these two individuals 
certainly did not act without authorization, and this whole process is focusing us 
on what we, in the national security community know are expendable soldiers. 
This is equivalent, in a military context, to going after two guys who were in a 
commando squad that raided one of your cities and killed hundreds of civilians, 
instead of going after the political leadership of the country responsible for doing 
it. In a very real sense, that's what we're doing. When you take the legal option, 
you have to face the fact that you have largely given up what have traditionally 
been regarded as appropriate and effective methods for dealing with a national 
security problem and that's a very, very big price to pay. We have to figure out 
ways to make these governments pay. Otherwise who cares if these two guys get 
killed somewhere, or go plead guilty, spend the rest of their lives in jail and have 
their families taken care of? Every State has the capacity to develop people willing 
to die for it, or to spend years in prison for it, in exchange for appropriate rewards. 

RADM HARLOW: Did you have a comment? 

MR. deGRAFFENREID: Yes, I had one comment, perhaps disagreeing a 
little bit with Abe on the congressional oversight and agreeing more with you, 
Tom. I happen to think, having been on both sides of it, that Congress should 
have a more substantial role in the policy dimensions of covert action and other 
low-intensity conflict issues than the Executive Branch would want them to 
have. I think the oversight process is a proper one and has produced the 
accountability that American covert action policy lacked. In practice it has, 
however, been a very imperfect process. In the area of low-intensity conflict, in 
covert action, because it's secret, the relative value of one senator or repre- 
sentative goes up enormously. He can kill a program by leaking it. I think that 
lure has proven very attractive to certain members, and that has corrupted the 
process. 



Panel Discussion 297 
RADM HARLOW: Mike. 

PROF. REISMAN: I also found both presentations extremely useful and 
provocative. 

I have two questions for Abe and one for Ken. 

Abe, in your criteria for proceeding with a particular low-intensity program, 
one of the tests was whether or not the acts would be in violation of foreign law, 
if I understood you correctly. Bruce mentioned the issue of espionage, which, I 
presume, is conducted all the time. I would assume that in most cases those 
activities don't meet the criteria that you established. I wonder if it isn't too high 
a standard, and the criterion ought to be whether or not the action in question 
violates international law, rather than the foreign law of the target State. 

The second question addresses something you said in a very clear way at the 
end of your presentation. You suggested that morality acts as a prudential override 
when law permits something, but morality never acts as an override on law when 
the law prohibits something. In other words, you don't proceed because it's the 
right thing to do if the law prohibits it. Let me put it this way. If the law approves 
and morality prohibits, kill the operation. If the law prohibits but morality 
permits, kill the operation. Is this what you meant? 

JUDGE SOFAER: On the latter, I think that when you turn it around that 
way, it isn't exactly accurate because there is an emergency power inherent in 
international law as well as in national law, and you do have to answer. I think 
that Jefferson was correct in that regard, as well as in others, although I think he 
ended up with too broad a view of emergency power because of his restricted 
view of the Constitution. The fact is that when you violate the law you have to 
admit you violated the law and face the consequences. As long as you're doing 
that, and you think that you've done something moral and justifiable, I accept 
it. For example, the nuclear reactor in Iraq. I think that is a violation of 
international law, except for the problem of Iraq having not withdrawn its 
declaration of war, which I really haven't yet analyzed. 

As to your other point, I think you've just over-read what I said. When I was 
in the government for five years I found it disturbing that we would violate the 
laws of foreign countries without giving that an adequate value weight. I'm not 
saying that when whatever you're doing violates the law of a foreign country, 
you can't do it. No. I said that it is a value in international law that States should 
not violate each other's domestic law. Now, maybe that's controversial, but I 
find myself very comfortable with it. I think that States ought to respect each 
other's domestic law and take into account the possibility that their actions might 
violate it. Then, if there is some overriding value that causes you to want to go 
ahead anyway, I would accept that, and you have to face the results, the 
consequences. 



298 Legal & Moral Constraints on Low-Intensity Conflict 

What troubles me about the way we have handled low-intensity conflict, 
particularly covert operations of a nonmilitary sort, is that it's not taken seriously 
into account that we are violating the laws of a foreign State. We are taking 
foreign law into account more fully than elsewhere when we analyze abduction 
proposals. When you go into a foreign country intending to grab someone, the 
ways in which you violate domestic laws are numerous and it's a very risky 
proposition. You're talking about a kidnapping. You may well kill someone in 
the process of the abduction. I just think that we ought to be more sensitive 
about the laws of foreign countries when we design these operations. 

PROF. REISMAN: Ken raised a point on which Abe had touched and that 
is the notion that where action is appropriate, it probably would be most effective 
if it were earlier rather than later, when it would probably be of no value. 

Bruce talked about preemptive actions, which I think is a very extreme 
example of the observation Ken was making. The question then came up 
whether there isn't, in a democracy, a preference for economic over military 
types of actions without regard to their consequences. I was struck by Abe's 
example of the destruction in 1981 of the Iraqi reactor, which could have posed 
an irreparable injury to Israel had it not been preempted. This seems characteristic 
of the nature of the threats that are likely to be posed in the beginning of the 
next century, the enormity of the damage that some of them can cause and the 
need for responding to them earlier rather than later. Do you or Abe see methods 
for adjusting democratic procedures so that without damaging the fabric of our 
political society, we can respond appropriately at the earlier rather than later 
stage? 

MR. deGRAFFENREID: There's a kind of inversion going on in thinking 
about the range of things that we loosely call low-intensity. We tend to single 
out assassinations, coups, the most extreme military examples of low-intensity 
conflict. Ideally, the use of force is an element in a range of low-intensity 
instruments that should be integrated. Other than the fact that lives are involved, 
it should not make a very particular moral difference. As a practical matter it 
should be integrated. The U.S. Government doesn't do that well. When all the 
focus is on the use of force, that separates it from the other elements of 
low-intensity conflict in a way that winds up being very dysfunctional. This 
works against the measured use of force for a limited end. I'm not talking about 
the more extreme examples, but the daily stuff of low-intensity conflict, which 
in many cases only involves a small measure of force, sometimes non-lethal 
operations that are nonetheless military. The fact that we have such a difficult 
time with the moral dimensions of lethal force tends to prejudice the integration 
of these things. Right now, the exclusive focus on extreme uses of force prevents 



Panel Discussion 299 

us from taking the only effective approach to low-intensity conflict, which is an 
integrated blend of economic, political and psychological elements. 

JUDGE SOFAER: I think you raise a very fundamental problem. Here's the 
way that I would look at it. Let's say we learned that Pakistan had permitted one 
of its nuclear devices to be moved up across its borders into Iran, where it had 
fallen into the hands of the Hezbollah through the Revolutionary Guard. Clearly, 
the United States should take action before someone uses that bomb because the 
Revolutionary Guard and Hezbollah have utilized whatever armaments and 
explosives they've managed to get hold of. If you can go to bed at night as a 
national security planner for the American people, and allow that to continue, 
you're not doing your job. You are not protecting the American people. Now, 
you have to suffer the consequences. I'm very uncomfortable with this idea that 
we're superior to foreigners, that we can cross their borders with impunity. I find 
myself very uncomfortable with that premise as an institutional matter. I'm not 
going to change the rules to allow us complete freedom. We're going to have 
to act, we're going to have to report that act, and we're going to have to protect 
ourselves the best we can, politically, as a result of having done it. The ideal way 
to do this, harking back to the Security Council and its potential, is to create a 
nuclear regime that we can all respect. Now, we're seeing something that we 
can certainly respect a lot more than anything before with the current U.N. 
resolutions relating to Iraq. They state specifics. We're seeing some real profes- 
sionals out there. For bureaucrats, they're performing heroically. If we can get 
the Security Council to create regular, routinized inspections of nuclear facilities 
and materials around the world, we might see real results on the ground. And I 
think the Security Council process is the most promising vehicle that we have 
ever had. 

RADM HARLOW: In response to Michael's question, I would also like to 
add that I think the April, 1986 air strike on Libya provides an interesting case 
in point on the application of legal principles underlying low-intensity conflict 
operations. Up until 1986, the United States had treated international terrorism 
as a law enforcement matter. The thrust of U.S. policy was the apprehension and 
bringing to trial of terrorists who had attacked U.S. citizens. 

This did not and could not , however, deal with the question of State-spon- 
sored terrorism. During the preceding decade, the effectiveness of terrorist 
organizations was greatly enhanced by the support given to them by countries 
such as Libya. There is ample evidence that Libya provided training camps, 
logistic support, passport documentation and other support to dissident groups 
who proclaimed an intent to conduct terrorist strikes against innocent Americans 
and citizens of other countries. Certainly, the air strike against Libya was beyond 
the scope of a traditional law enforcement action. Rather than view the air strike 



300 Legal & Moral Constraints on Low-Intensity Conflict 

as premised on a new and unique law enforcement principle, I think it can be 
more accurately characterized as a preemptive strike asserting the inherent right 
of anticipatory self-defense. In other words, based on necessity, the low-intensity 
conflict operation escalated from the legal arena of law enforcement to the arena 
of national security /self-defense. Incidentally, it seems to me that the strike did 
have the desired deterrent effect. Our evidence indicates that Libya's support for 
international terrorism waned appreciably in the years following the action. 

PROF. TESON: I learned a lot from both presentations. Very, very useful. I 
just wanted to talk about Ken's presentation. I was amused by the Jamesian 
description of the American sense of our place in the world. In James' novels, 
American characters are the embodiment of somewhat unsophisticated in- 
nocence and moral virtue, whereas Europeans represent a sophisticated devious- 
ness and greed. It's very interesting to see how, not just in the speeches of 
politicians, but also in the literature, this dichotomy is really constant in American 
thought and the make-believe place that Americans see for themselves in the 
world. But, just to focus on one point. You mentioned briefly that the ordinary 
American citizen has problems with low-intensity operations. It's hard for them 
to see force as justified other than to defeat evil. When force is used simply to 
improve the American situation in the world, then the American citizen rebels 
against it. Well, it seems to me that the average American citizen's sense of 
morality is right on the mark. If we are going to offer only strategic justifications 
for low-intensity operations, we will not satisfy the American tradition, nor will 
we comply with the Clause witzian requirement that we get the support of our 
people. So, this Kissingerian idea that the world is a great chess board and we 
just have to make the right moves without regard to morality is the wrong way 
to go. Once we have resolved the prior demands of conscience, then we are 
morally justified in achieving our strategic goals. 

RADM LEMOYNE: I'm from Special Operations Command, and I must tell 
you that those of us in uniform draw a very clear distinction between covert 
operations, on the one hand, and clandestine operations, which are done to 
maintain operational security. We have very little capacity to conduct covert 
operations. 

Judge Sofaer was correct in saying that low-intensity conflict operations are 
of short duration. Essentially, our special operations capability is bipolar. We have 
a surgical strike capability that doesn't trigger the War Powers Resolution because 
it is very quick. Hostage rescue, preemption, and those sorts of things are of very 
short duration. On the other hand, low-intensity conflict can take the form of a 
very long-term, low-level engagement. It may not involve lethal military force; 
often it must. In addition to supplying the Mujahedin with a whole array of 
weaponry, we also taught Afghanis, day in and day out, how to recognize, 



Panel Discussion 301 

neutralize and avoid mines, which were sprinkled all over their country. We did 
that for several years. But that does take congressional support. The Special 
Operations Command and Assistant Secretary of Defense of Special Operations 
and Low Intensity Conflict (ASD-SOLIC) are creatures of Congress. They exist 
today because Congress passed that legislation. We can't engage in long-term 
activities without solid congressional support. I don't shy away from it. We had 
very direct congressional involvement in El Salvador on the military side. We 
were expressly limited to 55 advisors. We did that year in and year out. But, the 
result is that now we have a negotiated settlement between the government and 
the Farabundo Marti National Liberation Front (FMLN). That's not an unhappy 
outcome and we did it with intense congressional scrutiny. 

RADM HARLOW: Well, I thank all the panelists for their excellent presen- 
tations. 



Chapter XII 



Roundtable Discussion 



Alberto R. Coll, Chair 



PROF. COLL: In wrapping up the conference this afternoon, I think it would 
be quite appropriate to ask each of my fellow chairmen to highlight some of the 
problems that they think it would be useful for us to consider further this 
afternoon. Each of the panel chairmen will have an opportunity to do that and, 
afterward, we will open up the discussion to the floor. 

PROF. REISMAN: I found this a very fascinating and challenging two days. 
A number of our theologians have said that there has been more talk of just war 
doctrine and natural law approaches to the use of coercion here in two days than 
in five years at the seminaries — and I must say, in twenty years of my own work. 
But I have tried to think our subject matter through. I have read the papers 
carefully, as everyone has, and attended carefully to the discussion. I have read 
some of the works that have been cited, but I will say that I see many things in 
a different light at the end of two days of discussion. In a sense, I see this as an 
extraordinarily creative opportunity for the United States. In other ways, I view 
it as extraordinarily dangerous. I would like briefly to explore those alternatives, 
and then make a number of suggestions as to what might be done to maximize 
the good possibilities and to minimize those which seem to me to be potentially 
pathological. 

I think we've used the words "just war" here in three different ways. In some 
cases, the same speakers were using it with a shifting content. In one sense, I 
think in the most innocuous, the notion of just war was used to describe a 
prudential method — infra legem, the Romans called it. When we know that 
something is permissible by law but we're not certain whether it's appropriate 
to do, the method we employ is a consideration of larger goals. We think about 
the means that are necessary for achieving them, the cost that will be expended 
and encountered in their achievement, and the returns that we ultimately expect. 
This strikes me as a form of good thinking and it is a contribution that natural 
law has made to all law application. I think it applies whether we're talking about 
the use of coercion, as Professor Johnson said earlier, or whether we're talking 
about the use of the four instruments of strategy that Admiral Lemoyne 
mentioned. It applies whether we're talking about using non-coercive means 



304 Legal & Moral Constraints on Low-Intensity Conflict 

over a period of time; the military instrument, the economic instrument, the 
propaganda instrument, or high level diplomacy. 

The second meaning, which I think is somewhat more troubling, is the 
prudential method which is not within the law, not infra legem, but priter legem, 
above the law, and in some cases, contra legem. 

In the discussion this morning, the question was posed to Judge Sofaer as to 
whether, in some circumstances, the compelling force of certain moral arguments 
might lead one to do something against the law, and he responded, "Well, we 
find a way to do it within the law." It struck me that we were, as it were, skirting 
a serious problem. The problem is that moral discourse does not simply prohibit, 
but in some cases compels, if it has any force. It does not simply tell you to refrain 
from doing something. The moral conscience compels with force, greater than 
that of Caesar, and what it compels can be against the law. Some aspects of the 
discussions about certain types of covert or low-intensity operations under 
international law, clearly would come under the second meaning, that of 
questionable compliance with the expectations of large parts of the international 
community. 

A third, more general use, which I detect in the discussions, is as the 
justification in the near future for the use of military force by the United States 
in peacetime. In this respect, the words "just war" are being used to create a 
vehicle for new ideology which will provide a justification quite distinct from 
contemporary international law. It is one that will justify or rationalize our 
decision from time to time to use relatively low levels of force, minor coercions, 
whether for an extended period or in a single operation. 

I think this last meaning is a fairly recent one. Three or four years ago, if a 
group like this had been convened to discuss low-intensity conflict, it would 
inevitably have been composed of men intent on using the concept against us 
and our friends. It was viewed essentially as a pathology. And, we bemoan the 
fact that the international legal structure, and to some extent the democratic 
politics of our own country, have tended to restrain our responses to low-inten- 
sity conflict. And, now we're talking about low-intensity conflict in a newly 
ideological sense as a justification for proaction on our part. I'm not saying this 
critically, and I will discuss in a moment the justifications for this use of 
low-intensity conflict, some of which I think are quite cogent. But, I think we 
should appreciate that we have three meanings and certainly the most dramati- 
cally innovative is this new ideological meaning. 

The doctrine of just wars is an extremely productive method of ratiocination 
and evaluation of decision options that comes from the natural law tradition. But, 
to use it for this new ideological purpose, seems to me to be quite dangerous for 
several reasons. The first is that it's not simply something that corrects the existing 
law as I've said, but, very often is compulsive. It compels one to do certain things. 
It may not be consistent with community standards, or as I will explain in a 



Roundtable Discussion 305 

moment, with the orders one is receiving from above. The second reason why 
this may not be the best vehicle for the justification for unilateral action by a 
major power in a unipolar system is the anarchic potential in the just war tradition. 
Several panel members who are experts in the tradition and have devoted their 
careers to its study, have pointed out that it is not a science. The use of just war 
reasoning is an art, it's appreciative, and reasonable people disagree over its results. 
The weight, the intensity of compulsion of certain factors may vary. The 
introduction of just war doctrine into a highly disciplined organization like the 
military could be potentially quite anarchic, unless, I laugh even to say this, we 
can imagine prohibiting officers of different ranks from using the techniques of 
just war to appraise whether or not things are right, and supply them with a just 
war expert who would tell them the correct position. We are introducing 
something which is, by its nature, democratic and invites every sentient human 
being to use his intellect and capacity for judgment to determine the justice of 
using coercion at a particular moment. I ask you whether that is something you 
want to incorporate into the decision-making apparatus of the military organiza- 
tion. The military, it seems to me, operates best when there is a strict hierarchy 
in command. As in the language of the Book of Leviticus, one says "This is the 
law and neither shall you depart to the left nor to the right." It's possible that the 
introduction of just war doctrine would return us to the chaotic periods of the 
Book of Genesis, in which, as the scribe explained, each man did that which was 
right in his own eyes. I cannot imagine an efficient military operating in that 
fashion. 

The third problem, which is explosive, was pointed out by Father Winters in 
one fashion, Professor Farer in another, and Professor Nardin. It is that we are 
departing from a set of value judgments that have been made in the largely 
collaborative process we call international law, which over time has established 
policies with certain balances attached to them. We are shirting over to the policy 
or value preferences of one particular country or social stratum and these may 
not be universal values. 

Father Winters talked about the culture specific problem. Carnes Lord, this 
morning, in talking about strategic cultures, put great stress on the argument that 
some, including myself, made yesterday, about the universality of norms. They 
may indeed be universal, but if strategic cultures are quite different, we can 
assume that culture will dominate in moments of crisis in which those charged 
with the security of a group will be primarily concerned with the maintenance 
of its collective integrity. At such times, they will do what is necessary to follow 
the imperatives of the strategic culture, rather than the larger international norms. 

I am, on the other hand, moved by the fact that the United States is in a 
position in which it has major responsibilities to the rest of the international 
community. I think that these responsibilities are quite clear and I think that they 
are the same whether one tries to justify them using a conception of national 



306 Legal & Moral Constraints on Low-Intensity Conflict 

interest, or human rights, or international law. We are integrated into a very tight 
and interdependent international community. If it does not work well, we will 
suffer precisely because of this inextricable integration. So, we have a major 
interest in seeing that it works right. 

Rhetoric aside, peoples all over the world look toward us in many ways, 
particularly in moments of crisis, to do something. If you accept that premise, 
and it is one from which I start, then the question should be: Is just war, as it's 
developed, the best ideological device for achieving our purpose? Do some of 
the costs of the just war tradition, which I think would rest very uneasily if it 
became an official ideology, make it less than the optimum vehicle for achieving 
this objective? The perspective of just war theory and natural law is that of those 
committed to making decisions and not those committed to receiving com- 
mands. I think it might be useful to generalize a set of intellectual tasks that we 
ought to follow and spell them out in some detail, rather than tying ourselves to 
a single tradition. I think that in every decision we ought to be looking at five 
intellectual tasks, each of which should be performed quite scrupulously. The 
first is goal clarification. If we are suggesting that in some circumstance we do 
things differendy from what a significant part of the world has prescribed, I think 
it important that we not think in terms of what we need, which ultimately is a 
solipsistic justification we would find unacceptable if used by others. We must 
consider whether what we are inclined to do serves the interest of the interna- 
tional community. 

I think we should go through a clear process of goal clarifications which 
identify common interests. Father Winters' warning about the potential for 
cultural parochialism in this process of ratiocination, should not be ignored. We 
should acknowledge it and develop methods for minimizing that particular 
pathological potential. I think once we've established goals, we should systemati- 
cally review the extent to which they have been achieved in comparable 
situations in the past and their costs. I think it behooves us to be extremely 
responsible in this fashion and to canvass what the past can teach us about the 
achievement of these particular goals at particular moments. 

I think we have to identify the conditions that prevailed then and are likely 
to prevail in the near future when the strategy is put into place, in order to make 
sure that the lessons that were learned from the past are still relevant. I think we 
owe it to ourselves when we are contemplating doing something like this, to 
consider its likely consequences. I agreed with almost everything Judge Sofaer 
said this morning but one remark in the discussion troubled me. In response to 
a comment he asked, "If we don't get these two men, what difference does it 
make?" I would think that if we can make a projection toward the future and 
we can find that the cost to our values or to the texture of international politics 
or world order is minimal, then an individual initiative on our part may not be 
justified. 



Roundtable Discussion 307 

Finally, I think we should seriously consider methods for exploring alternative 
means of achieving our goals that don't necessarily require unilateral action. I, 
throughout my career, have supported the notion that unilateral action by 
members of the international community can be justified when it meets inter- 
national standards and I don't recede from that for a moment. The international 
community's formal organs of decision are still quite weak and even when they 
work, it is owing to extraordinary pressure brought on them by one or two major 
actors. I am not excluding unilateral action, but I am fearful lest we invent an 
ideological vehicle that makes it easier for us to do things without going through 
very careful intellectual tasks that assure ourselves, and the world, that our actions 
are in the best common interest. 

Thank you. 

PROF. COLL: Thank you, Michael. 

That was both a very elegant and provocative challenge to us, and I do hope 
that we can focus on the kinds of questions that Professor Reisman just raised; 
they're tremendously important. 

Admiral Harlow. 

RADM HARLOW: I am mindful of the admonition that Professor Reisman just 
gave us; we are faced with an extraordinary opportunity, but also a very dangerous 
arena in which policy may be abused. I would, nevertheless, hope that this 
conference may serve as a useful basis for United States policy in this very sensitive 
area. 

Let me discuss what might be done in terms of implementing steps. In this 
arena, perfect is the enemy of good enough. I have a sense that time is of the 
essence, not only internationally, but domestically. Americans, in my judgment, 
do have moral fiber. It's not so firm that they can't be led into abusive and 
corrosive practices, but on the other hand, with wise and prudent leadership, I 
think we'll find there's a great reservoir of American will to do the prudent and 
the right thing. So, the key is wise leadership, and with it, we will not lack the 
will or moral fiber to take on the arduous and complicated task before us. 

I would suggest that there is a need for a Presidential statement. I think it tends 
to be corrosive for Americans not to really know what direction we are going 
in the long term. It's also damaging internationally. Just think for a moment of 
the fear that runs through the hearts of our foreign friends and adversaries alike 
at the prospect of irresponsible use of American power in a unipolar world. I 
think there's a crying need for a Presidential articulation of national purpose in 
this ambiguous area of international affairs. This should include the questions of 
special operations, anti-terrorism, regional strife and drug trafficking. And let me 
say as an aside, I wrestled with the issue years ago of whether we could translate 
anti-terrorist acts from the arena of law enforcement into the arena of national 



308 Legal & Moral Constraints on Low-Intensity Conflict 

security. As you know, traditionally, the United States has viewed terrorism as 
a law enforcement issue. The FBI has cognizance of terrorism in the United 
States, and the State Department internationally. In 1983, '84, '85, people started 
looking at that issue and wondered whether the new dimension of State-spon- 
sored terrorism would warrant a different view of our appropriate response. In 
view of the State-sponsorship of these acts and their impact on American citizens, 
civil aviation, and the world community in general, I believed that it was 
appropriate to exercise the extraordinary right of self-defense. So I, for one, 
supported what led up to the Libya raid. I cannot establish in my own mind, 
based on the evidence, that it did a hell of a lot of good. I suspect it may have 
deterred terrorism internationally. In any event, I supported that conversion from 
law enforcement to national security. The same issue may have to be faced in 
future years with regard to drug enforcement. I'm not proposing that shift be 
made now, because I see no firm evidence of State sponsorship of drug running. 
But if that were to arise, I would support the exercise of the extraordinary right 
of self-defense. 

I think one surprising thing during these last two days was the lack of discussion 
of the North/South issue. I think many nations perceive this as a situation where 
the rich get richer and the poor get poorer. International law and international 
relations have yet to come fully to grips with the question of redistribution of 
wealth; either voluntarily or through some systematic procedure. I'm not 
suggesting that I have an answer to that, but I am suggesting that it would certainly 
please me, and I think please many Americans, if the President came to grips 
with that issue and expressed the willingness to work with the community of 
nations toward what the Third World calls a new economic order that would 
address this issue. I think it's in our selfish interest to do so, if for no other reason 
than conflict avoidance. 

In any event, I think that Americans would support a balanced Presidential 
statement recognizing that we can and should live with diversity, but at the same 
time need not live with threats to our economic or social well-being, and that 
we will protect our interests, and those of our allies. 

I think that the theme of such a speech could be taken from the transcripts of 
our meetings. Going a few steps further, a national decision memorandum 
supporting the speech might require a Department of Defense concept im- 
plementation plan for low-intensity conflict. I would suggest that such a plan 
contain a statement of the unique nature of the challenge posed by low-intensity 
conflict. I'd also include in the paper a strategy to deal with this challenge. I 
would develop a catalog of countermeasures. Additionally, I would include a 
crisis management plan. There's been a lot of useful discussion here about who 
would be in charge and how the agencies would coordinate and develop such a 
plan to implement a policy, if the President announced it. 



Roundtable Discussion 309 

It would deal with issues of command and control. As Carnes Lord suggested, 
perhaps the military should be in command even over economic and political 
aspects of low-intensity conflict. That's a tough nut to crack. It will require an 
imaginative approach so we don't get bogged down in bureaucratic niceties, and 
avoid doing the right thing. 

I would also make provision for intelligence support. Here let me make a 
point that I think is important. Intelligence support is often viewed as espionage 
support. It is not, ladies and gentlemen. One tenth of one percent of intelligence 
support requires espionage. When I speak of intelligence support, I'm talking 
about something that is fully lawful. It has to do with intelligendy analyzing 
information that is readily available in the economic, political and military arenas, 
and communicating one's conclusions to the decision-maker. The point was 
made this morning that information delayed is information denied. Not only 
does it have to be delivered in a timely manner, but intelligence requirements 
have to be carefully assessed. Nipping things in the bud at a low level of violence 
requires robust intelligence support. If we are to develop a meaningful policy for 
low-intensity warfare, we must decide who is responsible for intelligence support 
and how those requirements will be identified. 

I would include in such a concept plan the question of legal issues. That draws 
us back to what Judge Sofaer and many others mentioned, the War Powers 
Resolution. Frankly, if I wrote the legal memorandum, I would not explicitly 
use the just war terminology, but would try to present the principles in the 
context of contemporary reasoning understandable to the military. 

Finally, there needs to be a policy oversight to attend to the moral dimension 
of any low-intensity conflict program and monitor its efficacy. The needs change, 
and the challenge moves so that reassessment must go on continually. 

Although we have listened to many different viewpoints during the sym- 
posium, I believe that our deliberations have revealed an identifiable core of 
consensus that could serve to support the approach I have outlined. 

Thank you. 

PROF. COLL: Thank you, Admiral Harlow, for your very practical counsel's 
recommendations. As we continue this project, we should strive to maintain the 
fruitful tension that we have seen here between the world of policy and practice 
and the world of philosophy and theology; between the values of the cave and 
the world of the bright, shining sun. 

Let me raise a couple of questions that I think we may want to wrestle with 
now. I think that the first question that we need to consider has to do with a 
point that Ken DeGraffenreid made. Ken said that one of the things he discovered 
in the policy process, is that often there seems to be a vacuum at its core. There 
is some input of legal advice at times, there are plenty of judgments based on 
purely strategic considerations, but, in his view, there is no process to ensure 



310 Legal & Moral Constraints on Low-Intensity Conflict 

consistent, adequate ethical reflection at the heart of the policymaking process. 
Therefore, we often make decisions on the spur of the moment and on the basis 
of practical considerations, without the illumination of ethical reflection. I think 
that we want to ask ourselves whether that's really true. Do we agree with Ken's 
description of the policy process and, if so, is it a good thing or is it something 
we need to worry about? I sense from Professor Johnson's intervention earlier 
today, that we should be worried. I share that concern and I wonder how the 
problem can be addressed. Admittedly, ethical reflection is not something that 
is taught mechanically and we need to see how we can institutionalize it with a 
great deal of rigor. But, there are some measures that could be helpful. I'm very 
encouraged, for example, by the tremendous work that Jim Barry, at the CIA, 
is doing. He heads a small think tank, within the CIA, that addresses ethical issues 
and that takes very seriously the mandate, both at the level of policymaking and 
at the level of professional conduct, to promote a greater degree of ethical 
reflection within the Agency. This could be one direction for our efforts, and 
you may want to offer some insights into that question. 

The second point that I wish to raise was put to me very provocatively 
yesterday by Chris Lamb. He said we need to come to terms with the fact that 
key decision makers in most crises are much more influenced by their broad 
national security responsibilities and the great global interests of the United States 
than they are by the moral issues of a particular emergency. An example of this, 
with which Chris is very familiar because he has written the best book about it, 
is the Mayaguez crisis. During the decision-making process in that affair, the 
American people were somehow led to believe that the real issue at stake was 
whether we should risk the lives of American soldiers in order to rescue the ship 
and its crew. But Chris's book very persuasively makes the case that the decision 
had little to do with the ethical imperative of saving the lives of American 
servicemen or even asserting our legal rights over an American ship. The decision 
was driven by Henry Kissinger's and President Ford's consideration that the 
United States was, at that point, in a very precarious position. The Mayaguez 
crisis took place in May of 1975. The United States had just suffered the 
humiliating loss of South Vietnam to the North Vietnamese. There were grave 
intelligence reports indicating that the North Koreans were contemplating a 
move against the South. Our adversaries in other parts of the world, including 
the then mighty Soviet Union, sensed that the United States might be retreating 
from its international responsibilities. From Kissinger's viewpoint, the seizure of 
the Mayaguez presented an opportunity to send a message to the North Koreans 
and other people around the world about our resolve and that's what drove the 
decision to recapture it. The concerns about the crew and the ship were very 
secondary. 

Now that is one example of the way pragmatic goals can outweigh moral concerns 
in national security decision-making and I think that we could cite others, including 



Roundtable Discussion 31 1 

the invasion of Grenada. I would expect Professor Nardin to have decided views 
on the ethical and political wisdom of that operation because he just finished a 
case study of it. In my opinion, at least from the outside at that time, the invasion 
of Grenada was not driven principally by our concern for the lives of the medical 
students on the island. In fact, we had trouble figuring out who they were when 
we landed, and if the Cubans had been really nasty, they could have slaughtered 
the students before we got to them. In my view, what really drove Operation 
Urgent Fury was a decision by the Reagan administration that this was an 
opportunity to send a very strong signal to Cuba, to Nicaragua, to the Soviet 
Union, and to a few other adversaries around the world about the determination 
of the United States to defend its global interests. The justification about the 
safety of the students was in truth, I believe, a much less influential concern. 

The problem that these sorts of national security decisions raise for us — and 
there are many others like the ones I just mentioned — is to determine what 
weight moral and legal reasoning actually bear in relation to the pragmatic 
considerations. I will leave this question open for a broader discussion. The case 
can still be made that even decisions based on pragmatic, strategic considerations 
can be morally and legally justified. But, we need to acknowledge that rather 
straightforwardly and think about what that may imply. 

Let me raise a third question for you to try to answer. Are there any points of 
significant consensus among us after a day and a half of deliberations, and if so, 
what might they be? My sense is that there is a great deal of disagreement; there 
may also be some points of consensus, and I hope that we can make them clear. 
I think we're in agreement that, in however indirect a fashion, legal, moral and 
other constraints related to our strategic political culture do limit the way in 
which we think about and implement low-intensity conflict policy. And, I think 
we also share the perception that notions of morality derived from just war 
thought, as Professor Johnson argued strongly in his paper, actually have a very 
close relationship to common morality and shape American thinking about what 
is right and proper to do. 

Let me close with a couple of challenges. Have we really wrestled with the 
relationship of low-intensity conflict in the jus in belled Are we prepared to say 
that low-intensity conflicts are by their very nature inherently more difficult to 
conduct in accordance with just war doctrine than other kinds of conflict? Is 
there something different about them, or are we comfortable with saying that 
they are no more problematic to subject to just war criteria than conventional 
conflict? I'm certain we would be able to make that case for nuclear or 
high-intensity conflict. What are the distinctions here? 

Finally, how comfortable are we with the possibilities opened up by the 
United Nations? How far are we prepared to go in strengthening the United 
Nations as a means of dealing with these conflicts in a multilateral way? I believe, 
of course, that the United Nations is not the only vehicle for us to act 



312 Legal & Moral Constraints on Low-Intensity Conflict 

multilaterally. In the Gulf War, for example, even if the United Nations Security 
Council had not given us its approval for the use of force against Iraq, the United 
States still would have been able to develop a very solid coalition with allies in 
Europe and the Arab world, North Africa and Japan. Are there any dangers 
related to our new-found enthusiasm for the United Nations Security Council, 
or are we comfortable and do we believe, as Judge Sofaer put it, that we have 
no other choice but to continue along that course? Taking the multilateral route 
will have tremendous implications for low-intensity conflict because sooner or 
later, we will probably fail to get United Nations support for a particular policy. 
Indeed, the dynamics of the Security Council itself are subject to change. We 
do not know how long, for example, China will be as pliable and as cooperative 
as it has been over the last two years, and there are still open questions, of course, 
about the future of Russia and its democratic orientation. 

Let me stop at this point and open the floor for questions and discussion. I 
will exercise my chairman's privilege to ask that we directly address Professor 
Reisman's point about the danger of just war as an ideology that might be used 
to justify proactive behavior abroad. I am very curious about how Professors 
Weigel, Johnson and O'Brien would respond to that concern. 

MR. WEIGEL: I think it's a very wise counsel of caution. Put another way, 
what I hear Professor Reisman suggesting is that we keep intact the border 
between the just war tradition properly understood, and the crusading or Holy 
War tradition, which is obviously not what any of us, I think, are talking about 
here. Part of the problem with getting a grip on this is semantic. If we thought 
in terms of a justifiable war tradition, that simple semantic shift would make it 
easier for us to understand that not everything that is morally justifiable is 
necessarily wise as a matter of State. I think what Professor Johnson said this 
morning, about the just war tradition as one resource among others for the 
construction of prudent and wise policy, is very much worth repeating. When 
we expand the purview of the just war tradition to claim that a morally justifiable 
action is morally obligatory, or necessarily wise, we cross the border between 
just war tradition and other forms of reasoning. If we think only in terms of 
justifiable resort to armed force, we may be able to keep to firmer ground. 

PROF. COLL: The expression "just war" often connotes the idea of a war for 
justice, which is not its key meaning. I think I agree with you that we need to 
think in terms of justifiable war, but many people read it as a war for justice. 

MR. WEIGEL: I think the point is that one can imagine any number of 
scenarios, even under a low-intensity conflict rubric, in which the result of the 
moral calculus seems to be positive, and yet, for a host of other reasons, one 
decides that what is proposed is not prudent. 



Roundtable Discussion 313 

PROF. COLL: Professor Johnson. 

PROF. JOHNSON: I liked Professor Reisman's discussion of the three ways 
in which the term "just war" is used. I thought he was absolutely right that all 
three uses have been employed here and they're present in general discussion 
outside of our deliberations as well. I also agree that the right use of just war, at 
least from my perspective, is the first. But, I would also suggest that the problem 
of the ideological use of this set of principles isn't unique to just war thinking. 
We find that whenever we have a set of principles for practical application. As 
Professor Coll was talking, I was suddenly struck by the possibility that someone 
might at some future time take that wonderful category you introduced which 
we haven't discussed — the use of low-intensity conflict for the purpose of sending 
signals — cross that with Professor Reisman's third use of just war, and we have 
low-intensity operations sending ideological signals all over the world for the 
purpose of keeping people in line or whatever. That's about the worst possible 
outcome I can imagine. 

I also think we should take seriously what Admiral Harlow said about the need 
to get some fairly concrete policy implications out of our thinking. I don't know 
how we can accomplish that, but it is one way, it seems to me, to avoid the 
ideological exploitation of the just war tradition. 

I was told that the guy who actually drafted the Weinberger Doctrine had 
studied at the War College under Donald Davidson, when he was teaching just 
war. So it was not accidental that the Weinberger Doctrine can be easily translated 
into just war language. That's one way to get these moral concerns into policies. 

The last thing I would say is that just war is a tradition of limitation. That's 
really what it's all about. It is not principally an effort to invent new justifications 
for the use of force. It's an effort to look at uses of force that are indicated by 
political needs, and determine whether they are morally justified. 

PROF. COLL: Professor O'Brien. 

PROF. O'BRIEN: My response to Professor Reisman would be more or less 
along the lines of Professor Johnson's. I prefer the first use of just war, the 
prudential method. The just war doctrine is not substantive. By and large, it's 
procedural and sets up a series of questions to which you must supply answers. 
It doesn't tell you what to do. It asks you to justify what you're going to do. And 
the first use of just war that Professor Reisman sketched out is in harmony with 
this approach. 

Now, cautious as Michael was about the second use, any natural law approach 
holds out the possibility that the positive law may be found wanting. That's the 
whole history of natural law, but direct challenges to positive law are rare. So by 
and large my reaction to your second use is not so much that the just war dotrine 



314 Legal & Moral Constraints on Low-Intensity Conflict 

would be against positive law, but that it might be used to interpret the law in 
ways that would be more reasonable. 

I'd absolutely reject the third use. Natural law is non-ideological by its very 
nature. It's an ethical framework of analysis. To put content in it, or to make it 
a tool of some particular point of view would violate its character. 

PROF. NARDIN: I noticed two tendencies in the discussion where people 
have divided ideologically over military issues. I would call one group of speakers 
separators, and the other group integrators. I'm speaking here about how one 
combines judgments of legality, judgments of morality, and judgments of interest 
or prudence. I should indicate before I go further with this that I'm a separator, 
just so you know. 

One of the issues that we've been talking about is the nature of law, because 
if law is going to govern low-intensity conflict operations, theories about it are 
not just academic. I think we have a range of quite different views of law here, 
and if you'll permit me to engage in a little parody which is deliberately unfair, 
I'd like to identify at least four theories that I've noticed. 

First, Professor Teson's view is that we should respect the law except when 
it's unjust. Then, Professor Turner's view is that we should respect the law except 
when it's inexpedient. Professor Farer thinks that we should respect the law even 
when it is inexpedient. And Professor Reisman says that we should do what's 
expedient and call it law. 

Let me immediately apologize to Professor Reisman by acknowledging that 
he does not intend that the United States should pursue its interests without 
reference to the concerns of other nations. I understand that he means to advocate 
a policy making process that is expedient for the larger system of international 
relations because it takes into account the interests of the international com- 
munity in formulating American objectives. 

However, these are views of law that do not identify it with the common 
interest. Law is seen instead as a set of constraints on the pursuit of the common 
interest. So I would say that Professor Reisman is a synthesizer or integrator. 
Some of you have said that in moral oversight we need to assess the need, accuracy 
and prudence of our efforts. Admiral Harlow agreed when he connected legality 
and morality with advocacy, expediency, prudence, and interests. 

On the one hand you have people who think that law is essentially a matter 
of interest and prudence; on the other, people who see it as a matter of rules or 
constraints in contradistinction to prudence. I think Judge Sofaer indicated 
repeatedly his commitment to that second view. 

I think the same divide persists when we pass from legal to moral issues. What 
is morality? For some people it's a matter of antecedendy authoritative principles 
that constrain collective international interests as well as those of individual States. 
The moral point of view is one of conscience, of principle, of civility, of restraints. 



Roundtable Discussion 315 

This contrasts with an entirely different view of the moral or the ethical, which 
looks to goals, interests, and outcomes. This is a basic divide in moral theory and 
it can't be settled here. But I will say that the conflation of law and morality with 
interests leaves them unable to stand as an independent criterion for judging 
conduct. They lose their critical force and prophetic judgmental basis, which are 
precisely the qualities needed by policy makers if they are to subject their work 
to standards that transcend parochial or nationalistic concerns. 

This brings to mind a third dimension which I would characterize as a 
fundamental cultural question. It's the debate about whether these standards are 
universal or whether they are particular or communal. That's a very hard thing 
to decide. I think we all recognize that one reason these debates are so 
complicated is that we're faced with a series of quite separate ethical outlooks, 
whether that of international law or American law; whether that of our Christian 
heritage or the rational natural law version of it; whether American military 
traditions or foreign. All these different viewpoints are not easily reconciled. 

To return to my initial distinction between the synthesizers and the separators, 
I think the weakness of the former is to strive for consistency at the expense of 
the critical independence of the various standards that we can call on to evaluate 
our policy goals. The separator who treats law as one thing, the national interest 
as something else, and his moral judgment as yet another, may find himself in 
normative gridlock. Nevertheless, his judgments retain real critical force because 
he can criticize a policy position on the basis of criteria not already subsumed 
within it. 

PROF. COLL: Thank you. 
Professor Farer. 

PROF. FARER: I wanted to speak to the question of just war as an ideology, 
prefaced by a brief comment on Professor Nardin's very important point. 

I find Terry is pushing me closer to Professor Reisman. I would distinguish 
the position that Terry has staked out for himself, a position which I always feel 
Michael tends toward, in the following way. Government international law tends 
to incorporate a long term sense of what is in the general or collective interest. 
It can't have authority distinct from national interests, because after all, the 
international legal system is a consensual one. We're one of the principal makers 
of those rules, so there shouldn't be a dichotomy between international law and 
our longer term interests. There can be a dichotomy between the constraints of 
law in a particular case, and what is seen as a short-term opportunity to seize an 
advantage. Unfortunately, political considerations often compel us to make 
short-fused decisions, even if not in a time of what appears to be a terminal crisis. 
In such exigencies, we don't have a chance to take into account the whole range 
of possible implications, short, medium and long term, so the law gives us valuable 



316 Legal & Moral Constraints on Low-Intensity Conflict 

guidance. There ought to be a powerful presumption, it seems to me, in favor 
of adherence to the law for that reason. Not because we think we are adhering 
to the law at the expense of interests, but because the law reflects interests 
contemplated outside the context of a crisis. 

With respect to just war as ideology, I disagree, I think, with Professors 
Johnson and O'Brien. I think there's no way of excluding it from our use of just 
war reasoning, the ideology is a world view. The temptation to employ 
low-intensity conflict strategies will be very powerful when others depart from 
our view of what is a desirable world order. We haven't focused very much on 
that. When Admiral Harlow talked about North/South problems, he suggested 
the difficulties that could follow from a conception of order as the maintenance 
of the existing distribution of power, prestige and wealth. I would predict that 
if we set ourselves up in this fashion as the guarantors of the status quo, we will 
become the targets of all of those who want change. This approach would 
probably increase the use of terrorism and low-intensity conflict strategies against 
us because they are the methods of the weak. We resort to these methods because 
the loopholes of the U.N. Charter permit it, as my friend Professor Turner 
pointed out. They allow this latitude because the existing distribution of power, 
wealth and prestige influence the capacity to generate norms. To what extent 
should we identify the minimum of order that we all agree is necessary for our 
national interests with the existing international dispensation? And let's not 
exclude the internal affairs of those countries like Saudi Arabia and others where 
we have important interests. I haven't thought this all the way through myself 
and I don't think anyone else has. If we do define the minimum of desirable 
order in this very conservative way, we can be sure that we will be targets for 
low-intensity conflict strategies by those who want significant change, and that 
we will respond to them with low-intensity conflict strategies. 

PROF. COLL: That's a very good point. 
Professor Teson. 

PROF. TESON: I would like to address the conclusions drawn by Professor 
Nardin from Professor Reisman's remarks. I think the distinction between those 
that separate law and morality and those who integrate them is just too simplistic. 
It seems to me, as anyone who has interpreted the law knows, that there are 
many ways, starting from the language of treaties, that you can factor your 
theories of morality into law. The very act of legal interpretation lends itself to 
an integrationist position because of the nature of jurisprudential language, quite 
apart from any desire to use the law in support of a particular moral position. 
The precise meaning of Article 2 of the U.N. Charter, which prohibits the use 
of force, has been debated for years. In this expression of the purpose of the 
United Nations, there is surely room for interpretation, be it by a court, a legal 



Roundtable Discussion 31 7 

advisor, an international lawyer, or a policy maker in low-intensity conflict 
operations; all of whom may introduce appropriate notions of morality into the 
process of interpretation. So I think that the distinction between separation and 
interpretation is just simplistic and doesn't wash. I agree with Professor Nardin 
that treaty law agreed upon by States may not leave room for interpretation. 
There might then be a point at which separation does take place and we must 
acknowledge that the positive law is unjust. A low-intensity conflict operation 
would then have to be justified on a moral basis. 

The second point that I would like to address concerns a comment by 
Professor O'Brien on just war theory. I would like to say that, although I was 
intrigued by the procedural framework of just war theory, it seems to me that it 
cannot be just that. It has to be filled in by some substantive notion of what's 
right and wrong, and when it is correct to exercise international coercion. In my 
view, the most desirable supplement to the procedural framework of the just war 
tradition is a theory of respect for legitimacy and human rights. 

I would like to make my final point by asking why democracies need to use 
low-intensity operations. I suggest that the reason is simply the existence of 
despotism around the world. As Professor O'Brien said yesterday, we don't 
conduct any low-intensity operations against Denmark. Democracies do not 
fight each other. Kant said this in 1795 in his book Perpetual Peace and it has now 
been overwhelmingly confirmed by the statistics collected by Michael Doyle and 
other political scientists. Therefore, I suggest that the promotion of democracy 
and human rights should be a principal motivation for the people who are 
planning these operations. 

PROF. COLL: Thank you Professor Teson. 
Professor Eckhardt. 

PROF. ECKHARDT: I noticed that our title is "Legal and Moral Constraints 
on Low-Intensity Conflict," and following on Admiral Harlow's suggestion, if 
I were in your position, I would commence a study of every congressional act 
and statute that you believe constricts justly, or otherwise, your ability to conduct 
the type of low-intensity conflict that you think is permissible. I would ascertain 
which statutes you think are invalid and suggest amending legislation where 
appropriate. I'm thinking about activities like security assistance and funding. I'm 
thinking in practical terms because, after all, the constitutionally mandated 
war-making power of Congress has sometimes been amplified through legislation 
that was only appropriate to the conflict which occasioned it, yet it remains in 
force. 

PROF. COLL: Thank you. 



318 Legal & Moral Constraints on Low-Intensity Conflict 

Of course I heard both Admiral LeMoyne and Ken DeGraffenreid say that 
those legal constraints really are not that bad; that indeed, it is a good thing for 
our health as a polity and for the wisdom of these operations, that they have to 
be reviewed through a careful process of scrutiny which includes all kinds of 
legislative restraints. 

PROF. ECKHARDT: My idea would simply be to ensure that we are not 
unnecessarily carrying outdated and impractical baggage, not to sweep away all 
restraints. 

PROF. COLL: Professor Turner. 

PROF. TURNER: I'd like to make three or four brief points. 

Professor Nardin characterized my views in one sentence. I don't think that 
was simplistic, I take it as humor. If anybody did think that was a representation 
of my views, I would urge you either to talk to me or re-read my paper. I believe 
law is extremely important and I was only thinking about an extreme situation 
in which the safety of the nation might be in jeopardy when I suggested that we 
might have to argue with the law, and I said even then that we ought to recognize 
the harm done by so doing. 

Also, I'd like to voice my agreement with the way Professor Teson stressed 
the importance of what John Norton Moore calls rule of law engagement, or 
promoting democracy in lieu of law. I think it is a tremendously important part 
of trying to reduce low-intensity conflict. 

I think the idea of working on legislation is worthwhile. I thought Abe Sofaer 
had an A-plus presentation except for his treatment of the War Powers Resolu- 
tion. He talked about having two months in which to act under the War Powers 
Resolution. You've got 48 hours to file your report or you're a lawbreaker. 
When I testified before the Senate Judiciary Committee a little over a year ago, 
Senator Biden told me that, in his view, the War Powers Resolution was only 
of academic interest. But I'll promise you that as soon as the President gets us 
into a situation in which bodies start coming home in bags and the public is 
unhappy, members of Congress will embrace that law and say "it's not our fault, 
get the crooks in the White House who concocted this illegal war." That's one 
of the laws that we ought to attack. You even get people like Senator George 
Mitchell saying it's unconstitutional, and yet nobody gets rid of it. When there's 
a Mayaguez operation in violation of the resolution, Congress can praise it, and 
when Jimmy Carter fails at the Iran rescue, an almost identical operation, they 
can call him a crook. I think that the resolution does undermine deterrence and 
may well promote low-intensity conflict. 

The last point is a broader one that Admiral Harlow raised earlier. I'm not 
sure it has gotten as much attention as it warrants, because it will have to be dealt 



Roundtable Discussion 319 

with by somebody in the government. That's the drug problem. As I understood 
the Admiral, he argued that the use of force by the United States against narcotics 
traffickers in foreign countries would constitute a legitimate exercise of self- 
defense under Article 51 of the U.N. Charter if it could be proven that their 
operations were State-sponsored. 

This position has a drawback that I tried to raise in my paper. Many of the 
old treaties that outlawed drugs also outlawed alcohol. Smuggling liquor does 
not involve a use of force as I see it. If it is self-defense for the United States to 
use force to combat a trade conducted by the agents of a foreign State that extends 
from their shores into our streets, then it is surely to be expected that the principle 
of reciprocity would give a foreign power such as Iraq the right under the Charter 
to fight the liquor trade at its point of origin in the United States. Alcoholic 
beverages are as offensive to the Islamic faithful as cocaine is to us. In other words, 
I'm really worried about taking Article 51 into the drug business. If foreign drug 
traffickers come onto our soil with narcotics or firearms, we can arrest them. But 
the view that it is a legitimate exercise of self-defense for us to attack residents 
of other countries who have initiated transactions in which Americans voluntarily 
engage, seems to me both unsupportable and dangerous. Nevertheless, the drug 
trade continues to be a considerable threat to our security and we must continue 
to think of ways to fight it. 

PROF. COLL: Thank you. 
Father Winters. 

FR. WINTERS: I'd just like to raise two questions that I think might be useful 
as a focus for a part of your book on the symposium and this desire has been 
sharpened somewhat by Professor Farer's questions. 

My first question is this: Do we as a group feel, and does the U.S. Government 
take the position, that our nation should remain open to the possibility of 
overturning governments in the name of justice? 

Now my own view, which you may already have predicted, is that there are 
three reasons why we should not remain open to that possibility. We should not 
be in the business of overturning governments, first of all, because it is contrary 
to the fundamental value of order, which should be irreplaceable in international 
affairs. Secondly, it breaks, as Professor Reisman said, a very long tradition of 
collaborative understanding of the operative principles of international relations, 
which includes sovereignty. Third, as Michael also observed, the record of success 
in overturning governments is not all that good. 

My second question is whether we should continue to commit ourselves to 
the possibility of helping governments resist insurgencies. Certainly international 
law seems to allow that and, perhaps, to encourage it. Just war tradition certainly 
allows it and is believed by many people to encourage it. I've always felt that it 



320 Legal & Moral Constraints on Low-Intensity Conflict 

was a good idea. The question Professor Farer raises is a very good one. Do we 
expose ourselves too much by coming down on the side of order? I don't know 
the answer, but I think that it is of fundamental importance to the low-intensity 
conflict debate. 

PROF. COLL: Thank you. 

MR. COLLINS: Professor Farer said that low-intensity conflict is the weapon 
of the weak. I would suggest to the group that it just seems that way because this 
conference has been devoted almost entirely to the military aspects of low-in- 
tensity conflict. Low-intensity conflict methods can be used by the strong to 
tremendous effect in non-military contexts such as political, economic, 
psychological and religious warfare. I'll give you one example. Japan is now in 
a great position to wage economic warfare against the United States. All four of 
our military services have weapons and equipment that are inoperable without 
components from Japan. If they turned off the tap now, we would have to ask 
how our just war principles would apply in such a crisis. Do they permit us to 
declare war against Japan for conducting non-military operations against the 
United States? 

PROF. COLL: The same question, by the way, was raised back in '73 with 
the oil embargo. 

MR. COLONS: Yes sir. 

PROF. COLL: And I remember Robert Tucker wrote a very famous piece 
in which he argued that the United States had the right to seize and occupy the 
oil fields in Saudi Arabia. 

PROF. O'BRIEN: I just would like to voice my agreement with Mr. Lord, 
Professor Eckhardt and Admiral Harlow about the need for serious study of how 
the United States Government deals with all the problems that come under the 
heading of civil affairs, whether they be political, economic, social or psychologi- 
cal. We never have come to grips with it. My experience as a former Army civil 
affairs officer suggests that the military needs help from the people in AID or the 
State Department or the universities to deal with all these things. There are a lot 
of compelling reasons why the military has to take the lead, but it can't go it 
alone in civil affairs. 

There are a lot of problems with getting a grip on civil affairs. First of all, to 
the extent that you take this business seriously, as soon as the Washington Post 
gets wind of your efforts, there will be an article saying "In the Pentagon they 
are plotting to take over and rule foreign countries." This has happened before. 



Roundtable Discussion 321 

The second problem, of course, is that competing bureaucrats will all start 
elbowing each other out of the way to see who can enlarge his turf. But I think 
this is simply inescapable because the civil affairs requirement, in most aspects of 
low-intensity conflict, is more important than anything else, including weapons 
systems, and all the other kinds of hardware. Ultimately, these conflicts are 
political and social and that's why civil affairs needs to be taken seriously within 
the United States Government. 

PROF. COLL: Thank you. 

Let me thank you most warmly for having joined us for this symposium. I 
have found it very helpful. As I suggested yesterday, these kinds of gatherings 
cannot be expected to produce either brilliant new insights or clear solutions to 
future problems, but I think that they perform a valuable service by airing critical 
issues that are easily overlooked in the policymaking process. I have found in my 
brief twenty months in Washington that the greatest moral frailty of policy- 
makers is not a particular fondness for aggression or a proclivity for hatching 
secret assassination plots. Our greatest sin is something far pettier and perhaps 
deadlier for our own society, and that is bureaucratic selfishness and tunnel vision. 
These failings induce us to mistake the process for the goal, the means for the 
end; to believe that those things which we are engaged in have a reason of their 
own, and to forget the fundamental reason for the existence of the vast, elaborate 
machinery of government, which, in my view, is to uphold the honor of the 
United States. I take that word "honor" to have a strong normative content. 
Honor implies doing what is lawful and also doing what is right. That is what 
we as a people believe. So it's useful to get together once in a while and undertake 
a serious enquiry about the nature of the constraints that we face. What is their 
weight? How do they affect who we are and what we do, and the kinds of goals 
that we should have in mind, and the kinds of means that we should use? 

There is something very attractive about Professor Nardin's reminder that law 
and ethics do have a prophetic quality about them. In other words, they often 
call us to do things that are not necessarily easy or that are not necessarily 
comfortable. It becomes tempting to reject these considerations out of hand and 
pretend that we are actually free to base our policy on nakedly expedient 
considerations or tailor it to justify the existence of the bureaucracy. One of our 
distinguishing human qualities, however, is that we are moral beings and live in 
a society bound by notions of lawfulness, against which we need to compare the 
substance of our policy. 

Low-intensity conflict is intensely problematic precisely because it is low-in- 
tensity, because it is ambiguous, because it is indirect. It does not throw into 
sharp relief the kinds of antinomies with which we are most comfortable. Instead, 
it pushes us into gray areas, where we are compelled to balance and weigh 
competing values, moral commandments and legal norms. 



322 Legal & Moral Constraints on Low-Intensity Conflict 

I also, however, consider myself a hopeless integrator, and would like to reply 
to Professor Nardin's commentary by pointing out one of the dangers of being 
a separator. The scrupulous separator maintains that the integrity of law and 
morality must not be compromised by commingling them with the national 
interest. But his refusal to cultivate any kinds of integrating links or even tentative 
embraces can sometimes have an untoward result. Morality and law may come 
to seem irrelevant to the policy process, and a crude understanding of the national 
interest untempered by normative considerations will be pushed to the fore by 
bureaucratic interests. This state of affairs is by no means foreign to the halls of 
our government. 

I am not prepared to give up the quest for integration. It is difficult and it has 
real dangers, including the temptation to equate what is expedient with what is 
right, or the tendency to equate our own ideology or narrow prejudices with 
the good of the world. I think that integration is vital to our ethos as a society 
because it harmonizes with the principles of our founding. The architects of our 
republican order built according to a vision that was strengthened by allowing 
for human imperfection. Their genius lay in framing an edifice in which selfish 
interests, channeled into mutual opposition, would be softened and reconciled 
with a moral and legal structure of enduring integrity. This is one of the defining 
features of the American experiment and it is why we are not by inclination 
separators. Two hundred years after our founding we still believe it is possible 
to build a society that acknowledges the realities of human sin; our brokenness 
and lust for power, while preserving the vigor of law and morality. 

I do want to close by urging all of you to think further about the influence of 
these constraints and how we might improve institutional arrangements for 
conducting this kind of discourse as our policy is formulated. We have been 
challenged by Chris Lamb and Ken DeGraffenreid to ask ourselves to what extent 
moral considerations actually play any genuine role in the policy process. As 
much as I agree with the particular examples given by Chris, I still think that 
there are many instances in which these considerations manage to push their way 
in and shape the debate. But this is a question to which there are not yet any 
clear answers, and one on which I'm open to fresh ideas. 

Let me thank you once again for joining us here, for your intellectual 
friendship, for the books and articles that you have written in the past from which 
many of us have profited, and for your good, practical counsel at every step of 
the way. We look forward to staying in touch with you and I hope that this will 
not be the last of similar efforts that we will undertake in the future as we continue 
our pilgrimage. And finally, let me thank the Naval War College for hosting this 
symposium. 

Thank you all. 



PART FIVE 



CONCLUSION 



Chapter XIII 

Can American Democracy 

Employ Covert Action as an 

Instrument of Statecraft? 



Alberto R. Coll and Richard H. Shultz, Jr. 

The famed Iran-Contra Congressional investigation of the late 1980s focused 
public attention on the question of whether the United States, as a 
democratic regime, should engage in covert action. This debate was not new. 
In many respects it mirrored that which took place during the congressional 
investigations of the United States intelligence community a decade earlier. A 
major issue then and more recently is whether, and if so to what extent, a 
President should employ covert action as an instrument of policy. The purpose 
of this analysis is to examine different American perspectives on this question and 
propose a set of guidelines for the use of covert action in the 1990s and beyond. 
Before turning to these issues, it is necessary to define covert action and briefly 
describe its constituent parts. Covert action is employed to influence politics and 
events in another country without revealing one's involvement or at least while 
maintaining plausible deniability (that is, conducting an operation so that the 
sponsoring government can credibly argue that it was not involved). Covert 
action is more controversial than other aspects of United States intelligence policy 
such as the collection and analysis of information, or counterintelligence. While 
relatively easy to define, covert action has become increasingly difficult for the 
United States to employ as an instrument of statecraft. 

Covert action involves various kinds of interference in the affairs of another 
country. It is a generic term that describes a class of activities that can be divided 
into the following five categories: propaganda, political action, paramilitary 
assistance, coups d'etat, and secret intelligence support. While each of these 
variants will be defined separately, it should be noted that they are often employed 
in conjunction with one another. 

• Propaganda, conducted covertly, is the dissemination of unattributable com- 
munications to alter the conditions under which governments act. The 
materials circulated may contain true or false information. An example of a 
major United States covert propaganda program during the 1950s was the 



326 Legal & Moral Constraints on Low-Intensity Conflict 

creation of Radio Free Europe and Radio Liberty to reach mass audiences 
in the Soviet Union and Eastern Europe. 

• Political action may involve money, advice, and assistance to individuals or 
groups in a foreign country. Provided through secret channels, the purpose 
of political action is to encourage those who are either friendly to one's own 
interests or hostile to one's enemies. Groups receiving assistance might 
include political parties, trade unions, government institutions, cultural 
associations, and media organizations. One early example of a major covert 
political action was the effort to counter widespread political subversion 
efforts by the Soviet Union in Germany, France, and Italy during the late 
1940s by giving clandestine assistance to non-communist political, labor, 
cultural, and journalist groups. Perhaps the best-known of these programs 
centered on the Italian election of 1948. Political action programs continued 
throughout the post- World War II period, and the debate over the merits 
of some of these programs has been quite contentious. CIA operations in 
Chile from the early 1960s through the Allende years became extremely 
controversial, although they were not initially so. 

• Paramilitary assistance involves furnishing secret military aid and guidance 
to foreign forces and organizations. Such aid may be given to those who 
either conduct or defend against a guerrilla insurgency. Until the 1980s, 
most CIA paramilitary efforts supported defenses against insurgency. For 
instance, in the early 1950s, assistance and advice helped the Philippine 
leader, Ramon Magsaysay, launch an effective paramilitary and 
psychological campaign against the Huk insurgents, who were backed by 
communists. Another example of paramilitary activity was the CIA's 
program in Laos in the 1960s and early 1970s. In 1962, President Kennedy 
decided to provide clandestine support to the the Royal Lao Army and 
to the Meo, as well as other hill tribes. By the end of the 1960s, the Meo 
forces, led by Van Pao, numbered almost 30,000. With extensive CIA 
support, they waged war against not only the pro-communist Pathet Lao 
forces but also against regular North Vietnamese divisions. The United 
States assisted some insurgent forces in the 1950s and 1960s, most notably 
in Tibet against the Chinese Communists and at the Bay of Pigs. 
However, it was during the Reagan years that the U.S. government used 
pro-insurgent programs most extensively. 

• Coup d'etat, in its traditional form, involves secret assistance or financial 
backing to a faction within a foreign country that carries out a deliberately 
conceived and swiftly executed seizure of government power through the 
removal of the current leadership. The CIA operation in Iran in 1953 is a 
classic example of a successful coup. A less traditional and broader definition 
might encompass advice and assistance to a leader who, while friendly, is 
rapidly losing legitimacy and control. In such instances, the goal is to assist 



Coll and Shultz 327 

clandestinely in his safe departure from the scene while helping those 
individuals and groups in the opposition who are most likely to be suppor- 
tive of one's interests. The Reagan Administration used this approach on 
two occasions. In 1986 it helped to bring to an end the twenty-year reign 
of Ferdinand Marcos, a long-time friend of the United States, by persuading 
him to go into exile, thereby allowing Corazon Aquino to assume the 
presidency. A second example was the exit in 1986 of Jean-Claude "Baby 
Doc" Duvalier from Haiti. 
• Secret intelligence support is another variant of covert action. It includes the 
provision of security assistance and intelligence training to the leader of a 
foreign country to protect him and preserve the regime. Frequently, such 
support is part of the intelligence liaison process carried out between an 
intelligence service and the leader the service seeks to help. This practice is 
the least-discussed aspect of covert action, yet the price of the failure of such 
programs can be quite high. The assassination of Anwar Sadat is a case in 
point, as was the death of Mohammed Zia. 

American Perspectives on the Use of Covert Action 

While there may be general agreement over the definition and elements of 
covert action, no such consensus exists within the American political system as 
to whether, or to what extent, the U.S. should engage in secret interference in 
the politics of another country. For several reasons this is not surprising. 

First of all, covert actions are concealed from the open public policy debate 
that generally takes place on most issues in the American political system. The 
question of secrecy in government is not new but dates back to the founding of 
the nation itself. From the beginning there was a dispute over the issue of publicity 
versus secrecy. The men who gathered in Philadelphia in 1787 differed over the 
extent to which secrecy was necessary. In principle, the Framers were proponents 
of open government. For example, in 1783, Alexander Hamilton, a conservative, 
was in the forefront of a movement to pressure the Congress to open its debate 
on the national debt to the public. However, few of the founders were willing 
to reject the need for secrecy out of hand. 

During the constitutional convention the issue of secrecy was debated in terms 
of the responsibility of the branches of government to release information and 
the rationale for withholding it. Witness the controversy over whether or not 
the Congress should be required, "from time to time," to publish an account of 
its proceedings. A compromise on the issue was subsequently included in Article 
1, section 5, indicating that while Congress is generally required to make public 
its proceedings it may withhold "such parts thereof as in their judgement require 
secrecy." However, no such proviso was included with respect to the Congres- 
sional reporting of public expenditures in Article 1, section 9. 



328 Legal & Moral Constraints on Low-Intensity Conflict 

With respect to international relations, the Framers were of the opinion that 
secrecy might be necessary. They sought to attend to the need for secrecy in 
national security by giving the leading role to the executive. The allocation of 
powers embodied in Article 2, section 2, represents an attempt to respond both 
to the needs of national security and the structure of checks and balances. Thus, 
the President can take swift action to respond to a crisis or exercise leadership in 
the conduct of relations with foreign governments; but the Congress has the 
power to declare war, regulate the armed forces, approve treaties, and oversee 
the broad outlines of foreign policy. 

A second, and more immediate, reason for American reluctance toward 
the use of covert action has to do with the Congressional investigations of 
the intelligence community during the latter half of the 1970s. In an atmos- 
phere engendered by the Vietnam War, publication of the Pentagon Papers 
and Watergate, Congress created committees to investigate alleged abuses and 
illegal practices by the U.S. intelligence community. In January 1975 the 
Senate voted to establish a Select Committee to Study Governmental Ac- 
tivities with Respect to Intelligence Activities, chaired by Senator Frank 
Church. A month later the House followed suit. Moreover, the Congress 
took immediate steps to expand its oversight of covert action. In December 
1974 it passed the Hughes-Ryan Amendment to the Foreign Assistance Act 
to accomplish this. Congress also passed the Clark Amendment to block 
covert assistance to the anti-communist factions in Angola. The atmosphere 
surrounding these developments was highly charged and was marked by such 
allegations as those of Senator Church, who described the CIA as a "rogue 
elephant on the rampage." While this and similar charges proved to be largely 
unfounded, as the final report of the Church Committee concluded, they 
contributed to the argument that a democracy should restrict severely, or 
eschew altogether, covert action. 

Finally, the Iran-Contra scandal of the late 1980s focused the public's attention 
again on whether or not the United States should engage in covert action. In 
many respects the questions raised and debated were the same as those thrashed 
out during the Congressional investigations of the 1970s. Major issues then and 
now included: first, should a democracy utilize covert action in peacetime; 
second, if so, which elements should be considered and which should be avoided; 
and third, to what extent does the President have the authority to make use of 
covert action as an instrument of statecraft. 

In spite of these and related objections, covert action has been employed 
throughout the postwar era. Within the American political system several 
perspectives exist about the subject. Below we will divide these into four general 
categories. 



Coll and Shultz 329 

Under No Circumstances Use Covert Action, For It Is Inconsistent With American 
Political Values 

The first viewpoint asserts that under no circumstances should the United 
States be involved in covert action. This perspective can be divided into two 
sub-categories: one, covert action violates democratic values; two, Presidents 
who undertake these activities do so without testing their viability in the public 
policy market place. 

The first of these variants has been advanced by such senior American 
statesmen as George Kennan and George Ball. Kennan is an interesting case, for 
initially he was a proponent of covert action in the latter half of the 1940s. At 
that time it was employed as part of a larger policy to rebuild Western Europe 
and prevent Soviet-backed communist parties from reaching power. Further- 
more, far from violating American values, covert action provided assistance to 
non-communist political parties to compete against their better financed com- 
munist competitors and win democratic elections. Nevertheless, to the degree 
that he grew disillusioned with America's Cold War policies, Kennan also 
became a critic of covert action. He wrote that "operations of this nature are not 
in character for this country. They do not accord with its traditions . . . The 
effort to conduct them involves dilemmas and situations of moral ambiguity in 
which the American statesman is deprived of principled guidance and loses a 
sense of what is fitting and what is not.'* While Kennan has been willing to 
admit that "there may be rare moments when a secret operation appears 
indispensable" — the ACHILLE LAURO kidnapping — he concludes that covert 
actions are "simply not our dish . . . [they] conflict with our traditional standards 
and compromise our diplomacy in other areas." 

George Ball, who served in senior positions in the Kennedy and Johnson 
Administrations, agrees with Kennan. As he stated a few years ago: 

In principle, I think we ought to discourage the idea of fighting secret wars or 
even initiating most covert operations. We throw away our considerable ad- 
vantages over the Russians when we indulge in such things... The United States... 
has assets that transcend that, the greatest of which is our reputation for upholding 
certain principles — noninterference in the affairs of other nations, respect for their 
sovereignty and self-determination, and so on... When the United States violates 
those principles... we fuzz over the difference between ourselves and the Soviet 
Union. 

Ball went on to argue that U.S. use of covert action equated with the 
"Brezhnev doctrine . . . [The] Soviet Union will not accept the overthrow of 
any of [its] satellites." He believed the U.S. has applied a "similar doctrine to 
Latin America." A handful of former CIA officials agree. For example, Ralph 
McGhee argued that covert action and democratic values are incompatible and 



330 Legal & Moral Constraints on Low-Intensity Conflict 

that the CIA "helped destroy democracy around the world" through covert 
action. He believed that this, in turn, would result in the destruction of 
democracy at home. 

A second variant of this perspective has been advanced by Morton Halperin, 
a former senior official of the American Civil Liberties Union and now a member 
of President Clinton's National Security Council staff. He believes that covert 
action commits the U. S. to policy initiatives that are not debated publicly and 
without giving citizens an opportunity to express their views. This is, in his 
constitutional interpretation, inimical to the democratic process. 

[Cjovert operations are simply incompatible with constitutional government and 
should be abolished. There is no countervailing national security value that makes 
this a hard choice . . . [T]hey are a threat to constitutional procedures and the First 
Amendment . . . The conflict between the secrecy of covert operations and the 
dictates of the First Amendment should be enough to lead Congress to prohibit 
such operations . . . Covert operations breed disrespect for the truth . . . [and] for 
the rule of law. Covert operations involve breaking the laws of other nations. 
Those who conduct them almost inevitably come to believe they can break 
American law as well. 

In fact, Halperin believes that secret operations have such a corrupting effect 

on the individuals and institutions that engage in them that he recommended 

"covert action and spies ... be banned and the CIA's Clandestine Services 

1 ") 
Branch disbanded." Former CIA analyst, E. Drexel Godfrey, has described this 

corrupting effect as the "ethos of intelligence." He explained it in the following 

way: 

Years of hardening in the ugly business of source control and penetration of foreign 
capitals have surely taken their toll . . . Thus, a picture emerges of a highly 
compartmented bureaucracy whose direction has been largely controlled by 
officials with long experience in the seduction of human beings and societies. Not 
immoral or even without ethical standards themselves, they have lost the habit of 
questioning where they should set limits on their official conduct . . . What top 
management lacked was the habit of limit setting, the reflex that warns of dangerous 
consequences — not of being found out, but of transgressing minimal ethical 
standards. 

Like Halperin, Godfrey recommended that the United States refrain from all 
clandestine operations and introduce a sense of ethics in the intelligence community. 

Use Covert Action As A Last Resort And When There Is A Dire National Security 
Emergency 

A second perspective views covert action as a last resort. It should be employed 
only when all else fails and there is a dire threat to the national security of the 



Coll and Shultz 331 

United States. This is a minimalist argument that views covert action not as a 
normal but as an extraordinary instrument of statecraft. 

The argument appears to have been made first by Walt Rostow in the 
aftermath of the Bay of Pigs debacle. Based on his review of what went wrong, 
Rostow proposed a standard for covert action. He noted that the CIA "only gets 
terminal cases when conventional means have failed. The CIA [is] asked to undo 
covertly what the policymaker on high had been unable to prevent overtly." 
Rostow suggested that when a President turns to the covert instrument he should 
do so only as a last resort. However, Rostow also noted that success in such 
operations is always doubtful. In his postmortem of the Bay of Pigs he observed 
that "all in all, it appears to have been an effort beyond the capacities of the CIA 
to mount successfully." 

A similar argument has been made by such distinguished public servants as 
former Secretary of State Cyrus Vance, former Secretary of Defense Clark 
Clifford, and the late Senator Frank Church. According to Gregory Treverton: 

For Vance, the language of the 1947 [National Security] act — "affecting the 
national security" — was too loose a standard for covert action. Instead he 
recommended covert intervention only when doing so was absolutely essential to 
the national security of the United States, and when no other means would do. 

Vance believed that "such actions should and would be very rare." He also 
asserted that certain kinds of covert action, such as assassination or interference 
with the electoral processes in other countries, should be proscribed. Vance's 
views were embodied in Executive Order 12036 of 1978, a document that served 
as the Carter Administration's guidelines for the activities of the national 
intelligence community. 

Meanwhile, Clark Clifford has noted that under the "original concept" in the 
1947 National Security Act "covert activities . . . were to be carefully limited 
and controlled." However, as the cold war continued "we greatly increased 
our covert activities . . . [to] literally hundreds of such operations going on 
simultaneously." He believed that "these operations have gotten out of 
hand . . . Our reputation has been damaged and our capacity for ethical and 
moral world leadership has been impaired." These conclusions led Clifford to 
a minimalist position: "the guiding criterion should be the test as to whether or 
not a certain covert project truly affects our national security . . . [This] will assist 
us ... in helping restore to our nation its reputation in the world for decency, 
fair dealing and moral leadership." 

Finally, Senator Church argued that covert action should be held in reserve 
for "dire emergencies." At such times he believed "timely clandestine action on 
our part might avert a nuclear holocaust and save an entire civilization." 
However, Senator Church also felt that covert action might be used to promote 
"our traditional belief in free government." To illustrate this he pointed to the 



332 Legal & Moral Constraints on Low-Intensity Conflict 

mid- 1970 events in Portugal: "I can also conceive of circumstances, such as those 
existing in Portugal today, where our discreet help to democratic political parties 
might avert a forcible take-over by a communist minority." 

Conduct Noncontroversial Covert Action Sparingly And Only When It Is Consistent 
With U.S. Foreign Policy 

A third set of views focuses on the following interrelated arguments: one, 
secret operations rarely achieve anything meaningful; two, they create great 
political embarrassment when exposed; and three, covert action has frequendy 
been inconsistent with our publicly stated foreign policy. 

On the basis of the above, the following guidelines have been proposed: 
involve the U.S. only in noncontroversial covert actions; use the instrument 
sparingly; make all secret operations consistent with overt foreign policy; and, if 
at all possible, carry out all covert actions openly. These arguments have been 
put forward most notably by the former Director of Central Intelligence in the 
Carter Administration, Admiral Stansfield Turner, and by several public policy 
specialists on intelligence matters. 

In Secrecy and Democracy f Turner observed that "everyone involved [with 
intelligence matters] should be required to read the history of covert action to 
be reminded of how little it can actually accomplish.*" His study of the postwar 
American experience led to the conclusion that the gap between what covert 
action promised and what it actually achieved was rather wide. Nevertheless, 
Turner saw the "quiet option" as very seductive to Presidents and their advisors, 
especially when a particular situation begins to go sour. He described just such 
a sequence of events during the Carter Administration: 

[Secretary of State] Vance was unenthusiastic about almost all covert actions and 
firmly opposed all paramilitary ones. [National Security Advisor] Brzezinski was 
an advocate and [Defense Secretary] Brown was in between. The wide difference 
between Vance and Brzezinski reflected the philosophical gap between them. 
Brzezinski was much more of an activist, but when it came to intelligence 
operations he had far less experience than Vance, a former Deputy Secretary of 
Defense. Brzezinski held unrealistic expectations of what could be achieved by 
covert action . . . Yet not appreciating that, Brzezinski repeatedly called for more 
quick covert actions ... In time Brzezinski prevailed, simply because there was 
frustration in the White House over continuing Soviet aggressions. Well before 
the end of the Carter administration in early 1981, a wide variety of covert 
operations were in place. 

Turner viewed the seductive nature of covert action as dangerous. While he 
concluded that it is "something our nation would never forsake entirely," he 
argued that we must sharply define the boundaries to "be placed around it, [to] 
determine what should and should not be attempted, and ensure that there is 



Coll and Shultz 333 

careful and continual control over it." For the former Director of Central 
Intelligence, covert action should be held "in readiness until the right conditions 
exist." In his view, this generally occurs no more "than once or twice during an 
Administration." 

Beyond these issues, Turner also has been concerned about the domestic and 
international political crises that have plagued postwar presidents when a covert 
action was exposed. To dramatize this danger he cited several examples, most 
notably the 1963-1973 CIA interference in Chile. This led Turner to recom- 
mend that the United States undertake only noncontroversial covert actions, so 
as to avoid political embarrassment. In an editorial concerned with the Reagan 
Administration's secret funding of the Nicaraguan Contras, he asserted: 

There are circumstances, I think, in which covert operations are justified and in 
which — if they became public knowledge — they would cause litde, if any, 
controversy. The Nicaragua operation, however, is not one of them. It risks 
substantial damage to both the national interest and to the CIA . . . When the dust 
settles on this particular incident, we should decide ourselves whether the price of 
limiting covert action to noncontroversial objectives is worth it. I believe that it 
is . . . We would do well to proceed only where there is a good chance that there 
would be a national consensus behind that covert action if it became known to 
the public. 

This issue of public exposure and political embarrassment has also drawn the 
attention of academic and policy specialists concerned with intelligence matters. 
For example, Gregory Treverton, who served on the National Security Council 
staff in the Carter Administration and later on the National Intelligence Council 
in the Clinton Administration, has expressed similar concerns as did Turner. 
According to Treverton, before an administration initiates a covert action it 
should address the question of whether or not it "could contemplate exposure 
in midstream. If it were disclosed, would it be deemed acceptable, by the 
American people in particular?"' Treverton's standard comes very close to the 
Turner argument that the United States undertake only those covert actions that 
will generate little political debate if revealed. 

The test of exposure is directly related to a second guideline proposed by 
Treverton — "does the intervention contradict overt American policy?" He 
believes that secret operations should be consistent with the stated foreign policy 
of an administration. "For presidents, prudence suggests careful attention to such 
warning signals as the review process throws up — the view of Cabinet officers, 
people in the White House who attend to the president's interest, and the 
congressional overseers as surrogates for public reaction." 

These policy dilemmas have led several academic and policy specialists to 
recommend that the U.S. severely limit its use of secret operations and, if at all 
possible, carry them out openly. For example, Loch Johnson has written that the 



334 Legal & Moral Constraints on Low-Intensity Conflict 

"U.S. should lessen its reliance on all forms of covert action, so that the quiet 
option does not again become the tail that wags the foreign policy dog." While 
he believes that there are situations in which the U.S. might "help [a friend] 
quiedy and honorably . . ., in most cases, the best assistance would be an open 
encouragement." Treverton concurs with this proposition, at least for large 
covert actions. He writes that the "imperative of secrecy, so powerful on the 
minds of decision makers in a crisis atmosphere, may be less than it seems. If 
covert action is not going to remain secret anyway, why not act openly?" 
Treverton admits that this may not settle hard cases. Nevertheless, the "bias 
toward openness [in the American political system] is a strong one," and we 
should seek to help our friends overtly, if at all possible. 

In the aftermath of the Iran-Contra revelations, Allan Goodman proposed that 

the political fallout from such operations is so great for the Central Intelligence 

it 

Agency that "covert action should be curtailed and taken away from the CIA." 
Goodman also has questioned the utility of covert action from the perspective 
of performance. He does not believe it has been cost-effective, and has argued 
that Presidents have employed it "when traditional diplomacy seemed unproduc- 
tive and overt military intervention risked wider conflict."' In light of this, he 
has urged that "Washington ... no longer conduct secret political influence, 
propaganda, and disinformation dimensions of covert action." Goodman does 
see the need for "some paramilitary operations, such as hostage rescue and 
antiterrorism." However, responsibility for it would be "returned to the Defense 
Department." 35 

Employ Covert Action as an Instrument of Statecraft within a Realist Context 

There are those who assert that covert action should be understood and 
employed as a normal instrument of statecraft in support of foreign policy 
objectives. It should not be used as a substitute for policy or as a last resort after 
all else fails. There is nothing exceptional or magical about covert operations. 

Individuals with rather diverse political views have argued along these lines. 
For example, Leslie Gelb of The New York Times has stated that the issue of 
covert action should be framed within the larger context of whether or not the 
United States ought to "interfere in the internal politics of other societies." He 
has written that that this "is exacdy what foreign policy is. All foreign policy is 
the extension of one's internal policies into the internal politics of another 
nation." This may take place openly or covertly: 

I think the question is not, "should we have covert operations?" The question is, 
what is your policy? If you have a policy that makes sense, it seems to me that in 
principle you could conduct covert operations supporting that policy that would 
make sense ... As for specific operations . . . sometimes they have been used 
wisely and sometimes not, but in most cases the real problem has not been with 



Coll and Shultz 335 

the covert action as such or with the paramilitary operation as such. It has been 
with the policy itself. 

Likewise, Angelo Codevilla, who often has criticized the CIA for its inability 
or unwillingness to function as a "full service" intelligence agency, believes that 
covert action should be considered as a normal and not an exceptional instrument 
of statecraft. He writes that "secret means of exerting influence are part and 
parcel of foreign affairs, intrinsically no more and no less appropriate than other 
means." For Codevilla, a foreign policy initiative is generally pursued through a 
combination of open and secret means. Consequently, covert action makes sense 
only as part of "broader campaigns to achieve foreign policy objectives." It 
should not be thought of as something distinct from policy or a substitute for it: 

The term covert action does not denote a category of human activity distinct from 
foreign policy and its execution, nor even a distinct category of means. Rather, 
the term covers certain means used by governments in a peculiar way, that is, 
secredy, for political purposes . . . Present-day America is unique in classifying 
these means under a single label. Although history is full of examples of nations 
carrying out what contemporary Americans call covert action, none but American 
statesmen and writers have ever set these actions apart from those of overt political 
activity. That is because, apart from a greater degree of secrecy, the means of covert 
action do not appear different from those of overt political activity. 

The theoretical basis for the proposition advanced by Gelb and Codevilla — 
that covert action is not beyond the pale of normal international politics but one 
of the instruments of power and influence to be employed in carrying out foreign 
policy objectives — is, in tone and approach, quite Clause witzian. The German 
theorist viewed war as "an act of force to compel the enemy to do our will." 
Armed conflict is only a means to a political end without which war becomes 
"pointless and devoid of sense." The same is true of covert action for Gelb and 
Codevilla. Clausewitz frequendy stated in On War that "war is nothing but the 
continuation of policy by other means." In other words, the use of force is an 
instrument of statecraft and not a substitute for it. When war begins, politics does 
not end: 

[W]ar in itself does not suspend political intercourse or change it into something 
entirely different. In essentials that intercourse continues, irrespective of the means 
it employs. The main lines along which military events progress, and to which 
they are restricted, are political lines that continue throughout the war into the 
subsequent peace. How could it be otherwise? Do political relations between 
peoples and their governments stop when diplomatic notes are no longer ex- 
changed? Is not war just another expression of their thoughts? 42 

In sum, Clausewitz saw war not simply as an act of policy but as an instrument 
to be employed in the pursuit of that policy. War should not be thought of as 



336 Legal & Moral Constraints on Low-Intensity Conflict 

an instrument oflast resort. War is but one arrow in the quiver of the statesman 
(covert action is another). Politics and policy saturate all aspects of war. Thus, it 
makes no sense to talk about military victory without including the achievement 
of policy objectives. One cannot create war plans without political guidance that 
details the purpose of the war and the objectives to be accomplished. The 
theoretical parallels between Clausewitz and the Gelb-Codevilla position on 
covert action, as described above, are apparent. They also are in the tradition of 
post-1945 realism. 

Students of post- World War II American foreign policy have argued that 
covert action has been employed by Presidents within the context of realism. 
From the Truman Administration to the present, proponents of realism have 
asserted that covert action, as well as overt forms of intervention, were justified 
so long as these activities were in support of "the national interest" of the United 
States. The statesman acting on behalf of the national interest was to follow a 
standard of conduct different from that found within a democratic polity. This 
is sometimes referred to as a pragmatic argument. According to Michael Joseph 
Smith: 

[B]y urging an ethic of responsibility and prudence, the realists sought to provide 
a general answer to the recurrent and perhaps ultimately insoluble moral dilemmas 
of statecraft . . . Realists have cleared away the easy optimism of the interwar 
idealists and exposed the illusions of facile liberalism. They have reminded us that 
we live in a world of states that claim our highest loyalties and provide a context 
of order . . . From Weber on, realists have insisted on the inescapable responsibility 
of power and have urged statesmen and citizens to apply an ethic of responsibility 
to the moral judgment of state behavior. 

How does this relate to the post- World War II American use of covert action 
as an instrument of statecraft? If we look back to the immediate years following 
the end of that war, the answer lies in the then emerging Soviet challenge. 
According to Ray Cline, former CIA Deputy Director for Intelligence, several 
senior officials in the Truman Administration "argued that the United States had 
to fight back covertly against widespread political subversive efforts sponsored 
by the Soviet Union in Germany, France and Italy." Thus, the CIA came to be 
involved in covert action "under pressure from leading U.S. officials of the day 
to support basic U.S. foreign policy." 

Covert Action and the Origins of the Cold War 

An examination of the early history of the CIA concurs with Cline's statement. 
Although President Truman initially rejected the need for a centralized intel- 
ligence service in peacetime and signed an executive order on September 20, 
1945, dissolving the Office of Strategic Services, he quickly changed his mind as 



Coll and Shultz 337 

the Cold War set in. Under the National Security Act of 1947 he established the 
CIA. Its broad charter authorizing it "to perform such other functions and duties 
related to intelligence affecting the national interest" has been interpreted to 
include the use of secret means to influence politics and events in other 
countries. 

Nevertheless, at the time there was disagreement over whether the CIA should 
be involved in covert action. Many wanted to limit its mission to the collection 
and analysis of information. As it became evident that the Cold War would draw 
the United States into protracted conflicts, a new National Security Council 
directive, NSC 10/2, established in 1948 the Office of Policy Coordination 
(OPC), with the responsibility to devise and carry out the full range of covert 
actions. In 1952, this office was merged into the CIA's Directorate of Plans, later 
renamed the Directorate of Operations. 

The language of NSC 10/2 was explicit in stating the need for covert action: 
"The National Security Council, taking cognizance of the vicious covert 
activities of the USSR, its satellite countries and Communist groups to discredit 
and defeat the aims and activities of the United States and other Western powers, 
has determined that, in the interests of world peace and U.S. national security, 
the overt foreign activities of the U.S. Government must be supplemented by 
covert operations." In other words, covert action was an instrument of policy 
and was to be used in a prudential manner to counter Soviet operations. In the 
words of one former CIA officer: "the creation of OPC was a pragmatic decision. 
No question of morality or legality intruded into the Cold War climate of the 
times. 

Both the Truman and Eisenhower Administrations used covert action as a 
pragmatic instrument of statecraft. Whether they always set aside questions of 
ethics and morality is open to debate. However, it was at that time that covert 
action came to be identified with the adage that "if we are to compete . . . we 
may have to be as nasty as our adversaries." Several recent writers on U.S. covert 
action, who are also among its most vigorous critics, argue that Presidents 
consciously adopted this standard in the conduct of secret operations. They 
point to what they believe to be the acceptance of the so-called "Doolittle 
standard" as prima facie evidence of the decision on the part of Presidents, 
throughout the Cold War, to separate democratic values from the pursuit of a 
realist foreign policy based on pragmatism and power politics. 

Lt. Gen. James Doolittle was commissioned by President Eisenhower in July, 
1954 to report on CIA covert activities and to "make any recommendations 
calculated to improve the conduct of these operations." His report was tough- 
minded and action-oriented: 

It is now clear that we are facing an implacable enemy whose avowed objective 
is world domination by whatever means at whatever cost. There are no rules in 



338 Legal & Moral Constraints on Low-Intensity Conflict 

such a game ... If the United States is to survive, long-standing American 
concepts of fair play must be reconsidered. We must . . . learn to subvert, sabotage 
and destroy our enemies by more clever, more sophisticated and more effective 
methods than those used against us. It may be necessary that the American people 
be acquainted with, understand and support this fundamentally repugnant policy. 49 

Although this was the view of one individual, or more accurately one "Special 
Study Group," several critics have argued that the "Doolittle standard," or an 
approximation of it, came to serve as the rationale for the use of covert action 
by American Presidents. For example, the Cold War historian, John Lewis 
Gaddis, traces this policy back to 1950 and the formulation of NSC-68. He argues 
that "for roughly the next two decades this doctrine — perhaps we should call it 
moral relativism — held sway." While noting that "the men who espoused 
it . . . were, for the most part, men of good will", nevertheless, "in the end all 
of them came to the view . . . that in periods of mortal peril these standards 
[democratic values] could not be allowed to stand in the way of whatever seemed 
required to defend the national interest." Gaddis points to covert action as 
epitomizing what he believes is the essential message of NSC-68: "moral 
compromises" had to become "more or less standard procedure" to meet the 
threat. Treverton refers to this as the "If-They-Can-Do-It-So-Can-We" 
principle. 

Even though during the two decades following NSC 68 there was a consensus 
in the United States over the need to employ covert action in conjunction with 
other policy instruments to contain the Soviet Union, an examination of the 
period raises doubts about the assertion that all U.S. covert operations were based 
solely on the "Doolittle standard", Gaddis's "moral relativism", or Treverton's 
"If-They-Can-Do-It-So-Can-We" principle. In fact, several covert actions were 
in support of policies that arguably sought to promote independence, self-deter- 
mination, pluralism, and democratic norms. In other words, covert action was 
neither a substitute for policy nor was it based solely on the principles of realism. 
In several instances, it was part of a larger policy that sought to blend strategic 
interests and American norms. 

Are Covert Action and Democratic Values Theoretically 

Reconcilable ? 

On what grounds might an American President consider the use of covert 
action as an instrument of statecraft? Is there a place for it in American 
statesmanship, or is it inimical to the values that underlie it? To answer this we 
should first consider the dimensions of this statesmanship. A modern definition 
of statesmanship holds that it "involves ... an ability to act competently and 
confidently in the world without damaging the integrity of a nation's character 
and principles." 53 






Coll and Shultz 339 

An understanding of the nature and requirements of statesmanship has been 
the subject of inquiry since ancient times. It was one of the principal concerns 
of classical political philosophy. For example, Aristode addressed the issue in the 
Ethics. He observed that the great statesman is the politician who demonstrates 
the capacity to act prudently on behalf of the State. However, for Aristode, 
prudence (practical wisdom in politics) is not understood in the same way it has 
been treated by many postwar realists. Prudence does not override morality, 
ethics and values in the name of the protection of the national interest. Prudence 
is not synonymous with successful pragmatism, cunning, or cleverness. Since the 
political basis for a nation is a set of shared principles, the action of the statesman, 
for Aristotle, is the prudential application of these principles to actual situations 
in the real world. According to Jeffrey Poelvoorde: "each significant action of 
the statesman involves a decision about what is required by the moment, what 
is permitted or demanded by the country's principles, and finally, what can be 
explained in the name of those principles to the citizens. This is the widest 
expanse of statesmanly prudence," as understood by Aristode. 

In other words, the basis for action in the international arena is the defense of 
the national interest, not to the exclusion of any consideration of the political 
values of the regime, but in light of those very same principles. Prudence and 
values are not separated but integrated. Thus, as Alberto Coll has noted, those 
who have advanced the idea of normative prudence insist that "it is possible to 
bridge the world of morality and that of politics, to pursue and achieve moral 
objectives in the political world, even if the objectives themselves have to be 
redefined and adjusted in the process." Within the context of this understanding, 
"prudence is not value-free; it remains under the guidance, however ambiguous 
and indirect, of moral principles. "56 

To develop for the American statesman a set of guidelines for the use of covert 
action in ways that take into consideration political values and principles, as well 
as geostrategic interests (and threats to them), we first must construct a normative 
foundation for those guidelines. To accomplish this we will draw on two moral 
and political traditions that have influenced American statesmanship: one, the 
classical view of statesmanship as reflected in the writings of Aristode and 
Thucydides; and two, the political principles underlying the founding of the 
American regime. These two traditions will supply the basis for the tentative 
policy guidelines presented in the final section of this analysis. What we seek to 
establish is a "middle ground" for an American statesmanship "that is neither 
politically impractical nor morally bankrupt." 

The Classical View Of Statesmanship 

Classical political philosophy was, in part, concerned with questions of 
statesmanship and the ends it ought to serve. Unlike many modem-day realists, 



340 Legal & Moral Constraints on Low-Intensity Conflict 

Aristotle explicitly, and Thucydides implicitly, sought to connect prudence and 
morality. Prudence was to remain under the guidance of, and be illuminated by, 
morality. However tenuously, the nexus between politics and universal principles 
was to be maintained. As noted elsewhere, "for Aristotle, prudence or practical 
wisdom was the highest form of virtue or excellence in political life. Without a 
prudent statesman at the helm, the polis was like a ship wildly tossed about by 
the waves of human passion and misdirected moral energies." 

In Book VI of the Ethics, Aristotle states that there are five modes of thought 
by which truth is reached: art, science, prudence, wisdom, and intuition. 
Prudence or practical wisdom, which is at home in political life, is the ability "to 
deliberate about what is good and advantageous." Individuals who are "capable 
of deliberation will be prudent." This is "because they can envisage what is good 
for themselves and for people in general; we consider that this quality belongs to 
those who understand the management of households and states." For Aristode, 
statesmanship (the management of States) and prudence are closely related. 
Statesmanlike prudence can take two forms: one has to do with directing or 
legislating, the other with "practical circumstances." With respect to the latter, 
Aristotle explains that the prudent statesman has acquired the capacity to 
deliberate. This is acquired through "knowledge of particular facts, which 
become known from experience." Prudence is different from either scientific 
knowledge or intuition. 

What is the relationship between prudence and virtue? Politics and the 
conduct of the statesman are to be directed toward virtuous, good ends. Aristotle 
writes that "the full performance of man's function depends upon a combination 
of prudence and moral virtue; virtue ensures the correctness of the end at which 
we aim and prudence that of the means towards it." Thus, prudence is directly 
related to virtue and is not to be confused with mere cleverness or cunning. In 
effect, the concern of prudence is to adjust or apply the universal moral virtues 
to particular situations. For Aristotle, the good statesman merges moral virtue 
with practical intelligence, experience, and knowledge of the particular charac- 
teristics of his regime and the world around it. 

What are the universal moral virtues that the best regime is to reflect and the 
prudent statesman to illuminate in his actions? They are most notably justice, 
moderation, courage, liberality, honor, and proper ambition. The nature of the 
polis plays a critical role in determining whether or not the State and the statesman 
adhere in its internal and external policy to these virtues. For example, Aristode 
asserted that the difference in the regime character of Athens and Sparta was 
reflected in their foreign policies. In commenting on their external policies he 
observed: "Taking supremacy in the constitution as the prize of victory they 
proceed to set up a democracy or an oligarchy as the case may be. Also, those 
who came to exercise leadership among the Greek states installed democracies 
or oligarchies in them according to the constitution which each had at home." 



Coll and Shultz 341 

Commenting on Sparta's glorification of war, Aristotle linked it to the 
teachings of her statesmen concerning the nature of the good life: 

their whole system of laws is directed to securing only a part of virtue, military 
prowess, as being valuable for conquering. Hence the Spartans were stable enough 
while at war but began to decline once they reached a position of supremacy; they 
did not understand how to be at leisure, and never engaged in any kind of training 
higher than training for war. 

Aristotle suggested that this perspective was not only morally incorrect, but 
dangerous to the internal well-being of the regime. As Richard Sears notes, 
"the implications of this seems clear: foreign policy can and ought to be evaluated 
on the basis of its correspondence or lack of correspondence with the principles 
of the good life . . . This is desirable both for moral reasons and because there is 
a close link between morality and political health or stability." 

With this in mind we now turn to Thucydides. This may seem, at first, to be 
inappropriate. After all, Thucydides is frequently presented in the literature on 
international relations as a forerunner of contemporary realism and is associated 
with Machiavelli and Hobbes. It is on the basis of the often quoted Melian 
dialogue that Thucydides is described as a realist. Yet, Thucydides gives no 
indication that he approved of Athens' cruel treatment of Melos and its in- 
habitants. He simply described those events with the kind of impassioned 
objectivity one would expect of a first-rate historian. If there is a hero in 
Thucydides' History of the Peloponnesian War, it is the Athenian statesman Pericles, 
whom Thucydides clearly admired, and whom Aristotle cited in his Ethics as the 
paragon of a prudent statesman. 

Through Pericles' Funeral Oration, Thucydides makes clear the linkage 
between prudence, virtue, free institutions, the nature of the Athenian regime 
and her successes at home and abroad. The speech is in honor of the first dead 
in the war. Pericles praised Athenian nobility, virtue, moderation and superiority 
in several ways. He asserts that Athens stands as a model for all cities: "Taking 
everything together then, I declare that our city is an education to Greece." 
Why was this so? Because of the institutions upon which Athens was based: 

Let me say that our system of government does not copy the institutions of our 
neighbors. It is more the case of our being the model to others . . . Our constitu- 
tion is called a democracy because power is in the hands not of a minority but of 
the whole people. When it is a question of settling private disputes, everyone is 
equal before the law; when it is a question of putting one person before another 
in positions of public responsibility, what counts is . . . the actual ability which the 
man possesses . . . We are free and tolerant in our private lives; but in public affairs 
we keep to the laws. This is because it commands our deep respect. We give our 
obedience to those whom we put in positions of authority, and we obey the laws 
themselves. 



342 Legal & Moral Constraints on Low-Intensity Conflict 

Here we see Athenian democracy at its best. This is government based on 
laws that liberate the talents of Athenians and contribute to making Athens, 
in Thucydides' view, the best regime. Her institutions and constitution 
underlie a character based on virtue and moderation. According to Sears, these 
qualities contribute to "wise collective decisions and to more effective public 
enterprises since in each man daring and deliberation are united. Athens' 
energy, daring, and innovativeness have all been encouraged by free political 
institutions." 

Pericles also stated with pride that the Athenians were noble in their 
treatment of others. "We make friends by doing good to others . . . this 
makes our friendship all the more reliable, since we want to keep the 
gratitude of those who are in our debt by showing continued good will 
to them." Here Thucydides is drawing the distinction between how 
Athens and Sparta acquired allies. The Athenians are restrained in their 
use of power over others and they encourage the development of 
democratic regimes. Pericles states: "We are unique in this. When we do 
kindness to others, we do not do them out of any calculations of profit 
or loss: we do them without after thought, relying on our free 
liberality." 71 

This defense of empire can also be found in the earlier dialogues at the Spartan 
Congress held just before the outbreak of the war, where the Athenian delegates 
pointed out that they ruled their empire more justly than their power required 
or than others in similar circumstances did: 

Those who really deserve praise are the people who, while human enough to enjoy 
power, nevertheless pay more attention to justice than they are compelled to do 
by their situation. Certainly we think that if anyone else were in our position it 
would soon be evident [that] we act with moderation . . . Yet, unreasonable 
enough, our very consideration for others has brought us more blame than 
praise . . . No one bothers to inquire why this reproach is not made against other 
imperial powers, who treat their subjects much more harshly than we do: the fact 
being, of course, that where force can be used there is no need to bring in the law. 
Our subjects, on the other hand, are used to being treated as equals; consequently, 
when they are disappointed in what they think right and suffer even a smallest 
disadvantage because of a judgment in our courts or because of the power our 
empire gives us, they cease to feel grateful to us for all the advantages which we 
have left to them. 

In the remainder of his history, Thucydides described how Athens abandoned 
moderation, justice, and prudence in its statecraft. That awful descent is, in fact, 
the major theme of Thucydides' History. With the death of Pericles power passed 
to men who were either demagogues, personally corrupt, or fatally timid. They 
lacked Pericles' prudence, that is, his ability to blend daring and innovativeness 
with moderation and restraint. 



Coll and Shultz 343 
Political Principles and the Origins of the American Regime 

The second tradition we shall draw on is that of the American regime and its 
founding principles as embodied in the Declaration of Independence and the 
Constitution. These documents were not a break from the classical past. The 
Founders were familiar with the "political writings of antiquity and accepted 
much of the classical criticism of democracy.'* As Martin Diamond has observed, 
they understood democracy as it derived from its Greek origins. However, he 
also noted that the "pre-modern preference for a mixed republic . . . was rejected 
by the Founders in favor of a democratic republic." 

The Declaration of Independence claims to base itself on "natural rights" and 
holds four "truths to be self-evident." The first of these is that "all men are created 
equal." This is the fundamental principle of the American democratic regime. If 
all men are created equal, no one has by nature a superior right to take another's 
liberty or to determine his or her way of life. From this primary proposition a 
second set of universal truths — "inalienable rights" — evolved. These individual 
rights include the right to "life, liberty and the pursuit of happiness." 

The third principle holds that to "secure these rights, Governments are 
instituted among Men, deriving their just power from the consent of the 
governed." This is the right to government by consent. The Declaration did not 
specify what type of government was best, only that the consent of the people 
is necessary to establish government. As Diamond has pointed out, "the Decla- 
ration was not urging a particular form of government, but was following John 
Locke's social contract theory which taught the right of the people to establish 
any form of government they choose." The fourth right was the right to depose 
an unjust or unrepresentative government. 

Are these universal principles relevant to U.S. foreign policy? It would seem 
unusual if a nation's values were not to influence how it acts in the international 
arena. Indeed, sooner or later, a nation will attempt to reconcile its foreign policy 
with what it stands for in its domestic institutions. How did the Founders view 
this issue? Although they established the nation on the doctrine of universal 
natural rights, they did not believe that our foreign policy should seek to 
transform all those nations that did not accept this as the basis of government. 
While the Declaration of Independence evoked a doctrine of universal natural 
rights which might claim to serve as a basis for foreign policy, the Founders also 
believed in the exercise of prudence. According to Nathan Tarcov, "the founders 
would not accept our dichotomy of idealism and realism: they would offer instead 
the complementary relation of principle and prudence. From their perspective 
the relation is not dichotomous but complementary, a relation of application and 
judgment." In other words, the Framers of the Declaration sought to strike a 
balance between universal principles and their prudential application in interna- 
tional relations. Prudence is not separated from values but requires values for 



344 Legal & Moral Constraints on Low-Intensity Conflict 

guidance or as a foundation for action. Thus, when we decide to use military 
force or carry out a covert action, our decision should be influenced joindy by 
our principles and prudential judgment. 

By applying this formula the Framers hoped to steer a middle path in foreign 
affairs between the amorality of the realists and the excessive moralism of the 
idealists. The Declaration suggests a path to statesmanship based neither on the 
absolute adherence to, nor the complete avoidance of, our values. It is the 
responsibility of the statesman to blend principle and prudence and to refrain 
from the unlimited pursuit of abstract doctrines in whatever form they take. 

During the Constitutional Convention, the Founding Fathers turned to the 
question of which institution was best suited to conduct statesmanship as 
described above. Although the need for a strong Executive was not articulated 
initially, by the end of the Convention the foreign policy powers of the President 
were substantially increased. Activities requiring deliberation were seen as most 
suitable for the legislative branch, while those calling for action and decisiveness 
were assigned to the executive. In the case of the latter, the characteristics of 
action and decision were seen as particularly necessary in the area of foreign 
policy. For this reason the executive was given the power to deploy troops and 
to use military force, although he could not declare war. Likewise, the President 
was assigned the power to conduct negotiations and related diplomatic activities, 
but treaty ratification was reserved for the Congress. The President also has 
responsibility for intelligence matters. 

While the Constitutional Convention left the exact scope of these powers to 
be worked in practice, there is little doubt that foreign policy authority was given 
extensive consideration. This was amplified in The Federalist Papers. Both 
Hamilton and Madison noted that the ability to act in foreign affairs was central 
to the power of the Presidency. The need for an effective foreign and defense 
policy required energetic government and this was seen as a central characteristic 
of the executive branch. As Madison argued in Federalist No. 37: 

Among the difficulties encountered by the Convention, a very important one must 
have lain, in combining the requisite stability and energy in government, with the 
inviolable attention due to liberty, and the Republican form. Without accomplish- 
ing this part of their undertaking, they would have very imperfecdy fulfilled the 
object of their appointment . . . Energy in government is essential to that security 
against external and internal danger, and to that prompt and salutary execution of 
the laws, which enter into the very definition of good government. 

Hamilton raised this same issue in Federalist No. 70: "energy in the executive 
is a leading character in the definition of good government. It is essential to the 
protection of the community against foreign attack." He goes on to state that 
the "ingredients, which constitute energy in the executive, are first unity, second 
duration, thirdly an adequate provision for its support, fourthly competent 



Coll and Shultz 345 

powers." Hamilton saw "decision, activity, secrecy, and dispatch" as key char- 
acteristics of the executive. 

In sum, for the Framers, the statesman was to blend principle and prudence 
in the conduct of international relations. In the Constitution this power was 
centered in the Presidency. Responsibility for defense and foreign policy was 
assigned to the Executive because it was the branch most suited for it. The 
Federalist Papers underline the fact that the Framers had solid arguments for placing 
the use of force and diplomatic activities at the center of the foreign policy powers 
of the President. 

Policy Guidelines for the Use of Covert Action 

The purpose of the previous discussion was to examine two Western 
philosophical traditions as potential sources from which to place the use of covert 
action on a firmer theoretical basis than exists in the four American perspectives 
described earlier. These two philosophical traditions, which have a number of 
common links with the just war tradition explored so thoroughly elsewhere in 
this book, provide a coherent foundation upon which to construct guidelines 
for the use of covert action as an instrument of statecraft. 

From Aristotle we will adopt an approach that seeks to connect prudence and 
morality in order to maintain a nexus, however tenuous, between politics and 
principles. Politics and the conduct of the statesman are to be directed toward 
virtuous ends. Within this context the role of prudence is to adjust and apply 
moral virtues to particular situations. Statesmanship becomes a form of prudence, 
and the statesman fulfills his proper role, when prudence and virtue are combined. 
Among the moral virtues that the best regime is to reflect are justice, moderation, 
liberality, honor, and proper ambition. These Aristotelian themes complement 
well Thucydides' warnings against excess, his praise of moderation in statecraft, 
and his view of prudence as a necessary check on unrestrained ambition. 

From the second tradition we noted that the American regime was founded 
on four universal principles: equality; inalienable rights; government by consent 
or self-determination; and the right to change government. The question was 
raised as to whether, and if so to what extent, these universal principles might 
be reflected in foreign policy. While the Framers evoked a doctrine of universal 
natural rights that would appear to serve as the basis for foreign policy, they also 
called for prudence. They saw a complementary relationship between principles 
and prudence. The Framers sought to strike a balance between the universal 
principles upon which the American regime was founded and their prudential 
application in international relations. By applying this standard the Framers hoped 
to steer a middle path in foreign affairs that, in today's terminology, would place 
them between idealism and realism. 



346 Lega